Sec. 31. That certain general laws of the state of Arkansas in force at the close of the session of the general assembly of that state of eighteen hundred and eighty-three, as published in eighteen hundred and eighty-four in the volume known as Mansfield’s Digest of the Statutes of Arkansas which are not locally inapplicable or in conflict with this act or with any law of congress, relating to the subjects specially mentioned in this section are hereby extended over and put in force in the Indian Territory until congress shall otherwise provide, that is to say the provisions of the said general statues of Arkansas relating to descents and distributions, chapter forty-nine.”
Act of Congress May 2, 1890, (26 Stat. L. C. 182. P. 81
“That on and after January first, eighteen hundred and ninety-eight, the United States courts in said Territory shall have original and exclusive jurisdiction and authority to try and determine all civil cases in law anti equity thereafter instituted and all criminal causes for the punishment of any offense committed after January first, eighteen hundred and ninety-eight by any person in said Territory, and the United States Commissioners in said Territory shall have and exercise the powers and jurisdiction already conferred upon them by existing laws of the United States as respects all persons and property in said Territory; and the laws of the United States and the State of Arkansas in force in the Territory shall apply to all persons therein, irrespective of race, said courts exercising jurisdiction thereof as now conferred upon them in the trial of like causes; and any citizen of any one of said tribes otherwise qualified who can speak and understand the English language may serve as a juror in any of said courts.”
Act of Congress June 7, 1897 (30 Stat. L. 83)
Sec. 7. “The homestead of each citizen shall remain, after the death of the allottee, for the use and support of children born to him after the ratification of this agreement, but if he have no such issue. then he may dispose of his homestead by will, free from limitation herein imposed, and if this be not done, the land shall descend to his heirs according to the laws of descend and distribution of the Creek Nation, free from limitation.
Original Creek Agreement (31 Stat. L. 861
Sec. 28. “No person, except as herein provided shall be added to the rolls of citizenship of said tribe after the date of this agreement and no person whomsoever shall be added to said rolls after the ratification of this agreement.
All citizens who were living on the first day of April, eighteen hundred and ninety-nine, entitled to be enrolled under section twenty-one of the Act of Congress approved June twenty-eight, eighteen hundred and ninety-eight, entitled “An Act for the protection of the people of Indian Territory, and for other purposes,” shall be placed upon the rolls to be made by said commission under said Act of Congress, and if any such citizen has died since that time, or may hereafter die, before receiving his allotment of lands and distributive share of all the funds of the tribe, the lands and money to which he would be entitled, if living, shall descend to his heirs, according to the law of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly.
All children born to citizens so entitled to enrollment, up to and including the first day of July, nineteen hundred, and then living, shall be placed on the rolls made by said commission; and if any such child die after said date, the lands and moneys to which it would be entitled, if living shall descend to its heirs according to the laws of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly.
The rolls so made by said commission, when approved by the Secretary of the Interior, shall be the final rolls of citizenship of said tribe, upon which the allotment of all lands and the distribution of all moneys and other property of the tribe shall be made, and to no other persons.”
Original Creek Agreement (31 Stat. L. 861)
Sec. 6. “Be it further enacted, that if any person die without a will, having property and children, the property shall be equally divided among the children by disinterested persons; and in all cases where there are no children, the nearest relation shall inherit the property.”
Laws of Muskogee Nation, 1880, p. 132.
Sec. 8. “The lawful or acknowledged wife of a deceased husband shall be entitled to one half of the estate, if there are no other heirs, and an heir’s part, if there should be other heirs, in all cases where there is no will. The husband surviving shall inherit of a deceased wife in like manner.”
Laws of Muskogee Nation, 1880, p. 60.
Sec. 1. “All non-citizens, not previously adopted, and being married to citizens of this Nation, or having children entitled to citizenship, shall have a right to live in this Nation, and enjoy all the privileges enjoyed by other citizens, except participation in the annuities and final participation in the lands.”
Laws of Muskogee Nation, 1880, p. 60.
“That the act entitled “An act to ratify and confirm an agreement with the Muscogee or Creek tribe of Indians, and for other purposes,” approved March first, nineteen hundred and one, in so far as it provides for descent and distribution according to the laws of the Creek Nation, is hereby repealed and the descent and distribution of lands and moneys provided for in said act shall be in accordance with the provisions of chapter forty-nine of Mansfield’s Digest of the Statutes of Arkansas in force in Indian Territory.”
Act of Congress May 27, 1902, (32 Stat. L. 258)
The above provision not effective until June 30, 1902 or July 1, 1902.
Sec. 6. “The provisions of the act of Congress approved March 1, 1901 (31 Stat. L. 861), in so far as they provide for descent and distribution according to the laws of the Creek Nation, are hereby repealed and the descent and distribution of land and money provided for by said act shall be in accordance with chapter 49 of Mansfield’s Digest of the Statutes of Arkansas now in force in Indian Territory: Provided, That only citizens of the Creek Nation, male and female, and their Creek descendants shall inherit lands of the Creek Nation: And provided further, That if there be no person of Creek citizenship to take the descent and distribution of said estate, then the inheritance shall go to noncitizen heirs in the order named in said chapter 49.”
Sec. 7. “All children born to those citizens who are entitled to enrollment as provided by the Act of Congress approved March I. 1901 31 Stat. L., 861), subsequent to July 1, 1900, and up to and including May 25, 1901, and living upon the latter date, shall be placed on the rolls made by said commission. And if any such child has died since May 25, 1901, or may hereafter die before receiving his allotment of lands and distributive share of the funds of the tribe, the lands and moneys to which he would be entitled if living shall descend to his heirs as herein provided and be allotted and distributed to them accordingly.”
Sec. 8. “All children who have not heretofore been listed for enrollment living May 25, 1901, born to citizens whose names appear upon the authenticated rolls of 1890 or upon the authenticated rolls of 1895 and entitled to enrollment as provided by the Act of Congress approved March 1, 1901 31 Stat. L. 861), shall be placed on the rolls made by said commission. And if any such child has died since May 25, 1901, or may hereafter die before receiving his allotment of lands and distributive share of the funds of the tribe, the lands and moneys to which he would be entitled if living shall descend to his heirs as herein provided and be allotted and distributed to them accordingly.”
Sec. 16 “The homestead of each citizen shall remain, after the death of the allottee, for the use and support of children burn to him after May 25, 1901, but if he have no such issue then he may dispose of his homestead by will, free from limitation herein imposed and if this be not done the land embraced in his homestead shall descend to his heirs, free from such limitation, according to the laws of descent herein otherwise prescribed.”
Supplemental Creek Treaty (32 Stat. L. 500)
“All the laws of Arkansas heretofore put in force in the Indian Territory are hereby continued and extended in their operation, so as to embrace all persons and estates in said Territory, whether Indian, freedmen, or other wise and full and complete jurisdiction is hereby conferred upon the district courts, in said Territory in the settlements of all estates of decedents, the guardianships of minors and incompetents, whether Indians freedmen or other wise
Act of Congress April 28, 1904 (33 Stat. L. 57:1)
(6) Mansfield’s Digest of Statues of Arkansas for the year 1884.
1. Sec. 2522When any person shall die, having title to any real estate inheritance, or personal estate, (b), not disposed of, nor other wise by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcency, to his kindred, male and female, subject to the payment of his debts and the widow’s dower, in the following manner:
FirstTo children, or their descendents, in equal parts.
Second–If there be no children, then to the father, then to the mother; if no mother, then to brothers and sisters, or their descendant, in equal parts.
ThirdIf there be no children, nor their descendants, father, mother, brothers or sisters, nor their descendants, then to the grandfather, grandmother, uncles and aunts, and their descendants, in equal parts, and so in other cases, without end, passing to the nearest lineal ancestor and their children and their descendants, in equal parts.
Sec. 2523Posthumous children of the intestate shall inherit in like manner as if born in the life-time of the intestate, but no right of inheritance shall accrue to any person other than the children of the intestate, unless they be born at the time of the intestate’s death.
Sec. 2524Illegitimate children shall be capable of inheriting and transmitting an inheritance, on the part of their mother, in like manner as if they had been legitimate of their mother (c).
Sec. 2525If a man have by a woman a child, or children, and afterward shall intermarry with her and shall recognize such children to be his, they shall be deemed and considered as legitimate.
Sec. 2526The issue of all marriages deemed null in law, or dissolved by divorce, shall be deemed and considered as legitimate.
Sec. 2527In making title by descent, it shall be no bar to a demandant that any ancestor through whom he derives his descent from the intestate is, or has been, an alien.
Sec. 2528.If there be no children, or their descendants, father, mother not their descendants, or any paternal or maternal kindred capable of inheritance, the share shall go to the wife or husband of the intestate. If there be no such wife or husband, then the estate shall go to the state.
Sec. 2529 If any of the children of an intestate be living, and some be dead, the inheritance shall descend to the children who are living, and to the descendants of such children as shall have died, so that each child who shall be living shall inherit such share as would have descended to him if all the children of the intestate who shall have died leaving issue had been living, so that the descendants of each child who shall be dead shall inherit the same their parent would have received if living.
Sec. 2530The rule of descent prescribed in the last preceding section shall apply in every case where the descendants of the intestate, entitled to share in the inheritance, shall be in equal degree of consanguinity to the intestate, so that those who are in the nearest degree of consanguinity shall take the shares which would have descended to them had all the descendants in the same degree who shall have died leaving issue been living, so that the issue of the descendants who shall have died shall respectively take the shares which their parents, if living, would have received.
See. 2531 In cases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs; but if the estate be a new acquisition it shall ascend to the father for his life-time, and then descend, in remainder, to the collateral kindred of the intestate in the manner provided in this act; and, in default of a father, then to the mother, for her life-time then descend to the collateral heirs as before provided (d).
Sec. 2532The estate of an intestate, in default of a father and mother shall go, first, to the brothers and sisters, and their descendants, of the father; next, to the brothers and sisters, and their descendants, of the mother. This provision applies only where there are no kindred, either lineal or collateral, who stand in a nearer relation.
Sec. 2533Relations of the half-blood shall inherit equally with those of the whole blood in the same degree; and the descendants of such relatives shall inherit in the same manner as the descendants of the whole blood, unless the inheritance come to the intestate by descent, devise or gift, of some one of his ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance.
Sec. 2534In all cases not provided for by this act, the inheritance shall descend according to the course of the common law.
Sec. 2535Whenever an inheritance, or a share of an inheritance, shall descend to several persons, under the provisions of this act, they shall inherit as tenants in common, in proportion to their respective shares or rights.
Advancement
Sec. 2536 If any child of an intestate shall have been advanced by him in his life-time, by settlement or portion of real or personal estate or both of them, the value thereof shall be reckoned, for the purpose of this section, only- as a part of the real and personal estate of such intestate descendible to the heirs and to be distributed to his next kin, according to law; and, if such advancement be equal or superior to the amount of the share which such child would be entitled to receive of the real and personal estate of the deceased, as herein reckoned, then such child and his descendants shall be excluded from any share of the real and personal estate of the intestate.
Sec. 2537 In cases where such advancement is not equal to the share that such child or relative, and his descendants, shall be entitled to receive, they shall be entitled to receive so much of the real and personal estate as shall be sufficient to make all the shares of the heirs in such real and personal estate and advancement to be as nearly equal as possible.
Sec. 2538The value of any real or personal estate so advanced shall be deemed to be that, if any, which was acknowledged by the person receiving the same by any receipt, in writing, specifying the value; if no such written evidence exists, then such value shall be estimated according to its value at the time of advancing such money or property.
Sec. 2539The maintaining, educating or giving money to a child or heir, without a view to a portion or settlement in life, shall not be advancement within the meaning of this act.
Constructions
Sec. 2540The term “real estate,” as used in this act, shall be construed to include every estate, interest and right, legal and equitable, in land, tenements and hereditaments, except such as are determined or extinguished by the death of the intestate, seized or possessed there as in any manner, other than by lease for years and estate for the life of another person.
Sec. 2541The term “inheritance” as used in this act, shall be understood to mean real estate, as herein defined, descended according to the provisions of this act.
Sec. 2542Whenever, in any part of this act, any person is described as living, it shall be understood that he was living at the time of the death of the intestate from whom the descent came; and, when any person is described as having died, it shall be understood that he died before the intestate.
22. Sec. 2543The expression used in this act, “where the estate shall have come to the intestate on the part of the father,” or “mother,” as the case may be, shall be construed to include every case where the inheritance shall have come to the intestate by gift, devise or descent from the parent referred, to or from any relative of the blood of such parent. Rev. Stat. Chap. 49.”
You will note that I have added numbers 1 to 22 in front of the sections of the Arkansas Law set forth above. I have done so in order to make clear that which follows. The Arkansas law of descent and distribution was construed as a whole by the Supreme Court of the State of Arkansas, in the case of Kelly vs. McGuire, 15 Ark. 555. The holdings of the court in the case of Kelly vs. McGuire had become rules of property before the Arkansas law was extended over and put in force in the Indian Territory. The writer of the opinion in this case was an eminent lawyer of Arkansas and was called in and made a special Justice of the Supreme Court and took a great deal of time in research and investigation before writing the opinion, and that part of his opinion that deals with real property is as follows:
“Whatever may have been the original foundation of the right of property, it admits of no question that its protection, in some shape, is engrafted into the jurisprudence of every civilized nation. In most of them, it constitutes an important feature of their organic law. No government, however, powerful, and whether free or despotic, could long command the affections and allegiance of its members, or preserve the order and tranquility of civil society, without respecting and securing this right, and affording adequate redress for its violation.
The transmission of property, whether, by descent succession, or purchase, depends upon the municipal regulations of each State, and no duty more delicate can be imposed on courts of justice, than to pass upon and enforce regulations. It is for the judiciary to construe, not legislate; and when the real intention of the law maker is ascertained, it must be declared, regardless of consequences. If cases are omitted, which ought to have been included, or hardships arise not foreseen, the remedy for the evil rests in the wisdom and discretion of another department. For us, it is sufficient to know, ita lex scripta.
This voluminous, and really difficult case, involves the construction of our statute of Descentspresenting questions not hitherto decided in our courts, and we can safely affirm, that they have been examined with care, diligence and patience. We have to thank the respective counsel for this very able argument in the case.
The facts, as far as they have a bearing on the present branch of the subject, are, that, about the year 1810, Charles Kelly emigrated to what is now Arkansas; and, in 1815, married Mrs. Craig, a widow, who had two daughters by a former marriage, named Elizabeth and Emeline. Charles Kelly, an enterprising, shrewd business man, aided by the prudence, skill and good management of his wife, accumulated in Arkansas, where he lived, a large estate, consisting of real and personal property. He died intestate in 1834, and, by the law in force, his real estate, descended, and his personal property was distributed to James DeWitt Clinton Kelly, who was the only surviving issue of the marriage with Mrs. Craig. She died in 1836, and the son above mentioned called, for brevity, Clinton Kelly, died intestate in Arkansas, the place of his domicile, in 1844, at the age of seventeen years, without having married and without issue, leaving as claimants for his property, his paternal grandfather, Greenberry Kelly, the descendants of Mary Eikelburner his paternal aunt, and his two sisters of the half-blood, Elizabeth and Emeline: the first of whom is the present Mrs. Marsh, and the second Mrs. McGuire.
The half-blood claim the entire estate of Clinton Kelly, real and personal, as his next of kin, and to the exclusion of all other persons.
We shall say nothing, at present, of Greenberry Kelly, or the Eikelburner heirs; because, if the pretentions of the half-blood to the whole, realty and personality, should prove to be well founded, it would be an useless enquiry.
To form a new system of descents, will always be found a work of difficulty. Human wisdom is inadequate to making out and establishing a perfect one at once. It is quite impossible to foresee all the consequences of an attempt so important, extensive and ramified. Omissions and imperfections, however, as they are discovered, must be supplied and remedied by subsequent laws.
Excepting the first section, and some minor provisions, our statute of descents was borrowed from one in New York, but with additions not calculated to improve, and with attempts at brevity and perspicuity, neither happy or successful. The original was, what it purported, and was intended to a pure statute of descents, using appropriate technical terms, regarding the inheritance of real estate, and not looking to the distribution of personal property at all. 2 Rev. Statutes New York, 750; Digest .1:36.
The first section of ours was extracted from some other statute of descents, amended by the revisers, by the interpolation of so much as relates to the distribution of personal estate; thus blending two subjects of a totally different nature, and governed by totally different rules. And it is this, which produces no small degree of difficulty in our system. We must, however apply to it that universal rule of construction, that a statute should be so considered as that every clause, sentence, or part, shall stand, if possible; or in other words, such construction as will best answer the intention of the makers. 9 Bac. Abr., Statute J. 2, J. 5. General words or clauses in a statute. may be restrained by particular words, or clauses in the same statute. And when one section in a statute may be both general and particular or where there are different provisions for different purposes, and penned in different words, in the same chapter, they ought to be so construed as to avoid inconsistency. Id. Campbell’s case, 2 Bland. 209. The application of these rules to the case in hand, will be readily perceived.
The 1st section is general and comprehensive, embracing all lands, whether ancestral or newly acquired, subject to certain exceptions and qualification hereafter more particularly noticed, and these exceptions refer to real estate alone. This section also constitutes the table, by which real estate is to descend and personal property distributed. As by its express language, it relate, to both real and personal property, it was manifestly the design of the Legislature, when there were descendants of the intestate, to send down both to them per capita, if in equal degree, and per stirpes, if in unequal degree, with out any regard to the fact as to how the property had been acquired. And as to personal property, where there are no descendants of the intestate to distribute it to, collaterals will take in the same way as descendants, if there had been any; that is to say without any inquiry as to how it was acquired, and, per capita, if in equal degree, and per stirpes, if in unequal degree. This was manifestly the design of the Legislature. The sections of the statute which have reference to both real and personal property, and expressly name or allude to both, or embrace them in their spirit, are the 1st, 4th, 5th, 15th, 16th, 17th, and 18th. The 15th, 16th, 17th, and 18th, touch to subject of advancement. And, to attain the object in view, it was necessary to blend real and personal property together; because the amount received is the inquiry; and whether in land or personal property, produces the same result.
It may not be unworthy of remark, that neither is the 1st, 4th, 5th, nor in these sections, is the technical term “inheritance,” used at all.
The 1st, 4th, 5th, 15th, 16th, 17th and 18th sections, are the only ones designed, in our opinion to apply to both real and personal estate; All the rest embrace real estate alone.
The effect of the 1st section is, to constitute the persons, who take the personal property, whether per capita, or per stirpes, and whether the whole or half-blood, the absolute owners. Nor is it material whether those persons are of the paternal or maternal or the lineal or collateral line. By that section, as already remarked, real and personal estate goes in the same channel, and if no subsequent provisions had been introduced, touching real estate, the precise bearing of which, it is probable the rivers did not perceive, our labors would have been comparatively easy. At present, nothing further need be said as to personal property, as we shall find it necessary to allude to that hereafter, and shall now speak in reference to real estate.
The effect of the first section, subject to the exceptions and qualifications alluded to, is to vest an absolute estate of inheritance in lands in the person who takes. And every estate, interest and right, legal and equitable, in lands and tenements and hereditaments, excepting only leases for years, and estate for the life of another person, are thus inheritable and descendible; or, as the first section expresses it, “having title to any real estate of inheritance” constitutes an inheritable estate, thus abolishing the common law doctrine, derived from feudal times, of actual seizin in the ancestor. Whoever claimed by descent, was bound to show that he was heir to the first purchaser; and the seizin of the last possessor, from whom he claimed as heir, was considered as presumptive evidence of his being of the blood of the first purchaser. It supplied the difficulty of investigating a descent from a distant stock, through a line of succession become dim by the lapse of ages. 4 Kent 386.
But, with us ownership, or title to property, is substituted for seizin; and maxim seisina facit stipitem, of such controlling consequence in the English scheme of descents, is entirely superseded. By descent or hereditary succession, it is understood the title whereby a person, upon the death of his ancestor, acquires the estate of the latter as his heir at law. 3 Bac. Abr. Descent 104.
We pass now to the more particular consideration of the 10th section.
The manifest intention of the first part of this section was to preserve ancestral estate in the line of the blood from whence they came. It was a partial adoption of recognition of the common law principle, which invariably followed the line of the blood, If the estate comes to the intestate by the father, or as it may be differently, and as well expressed, on the part of the father, then it must ascend to the father and his heirs, and thus overturning the inflexible rule of the common law, that an estate could never ascend; but should rather escheat to the lord. And so, if it comes by or on the part of the mother, it goes to the mother and her heirs, in exclusion of the heirs of the father. In other words, it remains in the paternal or maternal line, from whence it was derived.
The expressions, “come by the father,” or “mother” or on “the part of the father” or “mother” mean the same thing. Maftit v. Clark, 6 Watts & Serg, 260. They are familiar to, and derived from the common law, having an appropriate, technical meaning, which we must suppose the Legislature intended to adopt. They embrace not only the father, but all of the ancestors of the father, both paternal and maternal. Co. Litt. 12 a. When ever, says Lord Coke, lands do descend from the part of the mother, the heirs of the part of the father shall never inherit. And, likewise, when lands descend from the part of the father, the heirs of the part of the mother shall never inherit. Co. Litt. 13a.
The 10th and 22nd sections must be construed together, although the exact expressions used in the latter, are not contained in any part of the statute. But words of equivalent signification are employed, and they are embraced within the spirit of the 22nd section. Any other exposition would render the section entirely nugatory; and we must so construe statutes as that every part may have its proper effect, if possible.
The expression, then, “come by the father, or mother,” is not limited to an estate acquired by descent merely, but includes an estate which comes to the intestate by gift, devise or descent from the parent referred to, or from any relation of the blood of such parent. Such is the letter and spirit of the statute. In other words, there are two classes of cases provided for: One, where the blood of the person, from whom the estate came, whether it be by descent, devise or gift, is regarded; and the other, where the blood of the intestate form, the stirps, or stock of descent, without respect to ancestral blood.
Chancellor Kent says there is a difference in the laws of the several states, between the succession to estates, which the intestate had acquired in the course of descent, or by purchase. “If the inheritance,” says he, “was ancestral, and came to the intestate by gift, devise or descent, it passes to the kindred, who are of the blood of the ancestor from whom it came, whether in the paternal or maternal line.” 4 Kent 404.
The portion of the 10th section, as to new acquisitions, gives the father and mother a life estate only, with remainder to the collateral heirs of the intestate: such as brothers and sisters, and their descendants, and so on. A new acquisition, or newly acquired estate, does not afford of itself, an exact idea if the mode of acquisition. By the common law, there were two modes of acquiring an estate, distinguished by the general appellations of descent and purchase. In the first, it was by operation of law; and in the second, by act or agreement of parties. Devises and gifts fall in the latter class. An estate by purchase there became inheritable to the heirs general of the purchaser, first of the paternal, and then of the maternal line. 2 Bl. Corn. 243.
It must be understood, however, that a new acquisition, in the sense intended by the statute, is one which the intestate has acquired by his exertions and industry. (Brewster v. Benedict, 14 Ohio 385), or by will or deed from a stranger. In other words, it is an estate derived from any source other than descent, devise or gift, from father or mother. or any relative in the paternal or maternal line. Butler v. King. 2 Yeg. 116.
If the son should purchase land from the father or mother, for a valuable consideration, it would be a new acquisition, and descend as such; because nothing is received by way of bounty at the hands of ancestors, which is the case as to lands descended from, or devised, or given by them to the intestate, and it was thought reasonable that they should remain in the blood from which they came.
Land is to be considered as having come from, or by, or on the part of the father or mother, when it comes by gift, devise or descent, either mediately or immediateiy from them, or from any person in their respective lines. Shippen v. Isard, 1 Serg. & Rawle, 223.
The 12th section provides that, “relations of the half-blood shall inherit equally with those of the whole-blood, in the same degree, and the descendants, of such relatives shall inherit in the same manner as descendants of the whole-blood, unless the inheritance come to the intestate by descent, devise or gift of some one of his ancestors, in which case, all those who are not of the blood of such ancestor, shall be excluded from such inheritance.
It has been contended, with much ability and inguenity, that the restriction in the latter clause of the section applies to the descendants of the half-blood only, and that in such is the grammatical and logical construction.
But we are unable to subscribe to this argument. It would be unsafe to construe a statute according to mere grammatical rules, or to rely on any material aid in ascertaining the true meaning. Neither bad grammar nor bad English, will vitiate a statute any more than a deed. It is well known that ancient statutes were without sections or punctuation, and hence the reasonable and universal rule that the sense must be collected from the whole set.
It is the clear that the meaning and intention of this section was to prohibit the half-blood, and their descendants alike, from sharing in the inheritance of an estate which might come to the intestate by descent, devise or gift from an ancestor, in all cases where they were not of the blood of such ancestor. The reason for excluding the half blood is just as strong as for excluding their descendants, and it is impossible to conceive any well founded distinction between the two. And whatever opinion we might entertain as to the hardships of such a rule in any given case, or as to the impolicy of establishing lines of blood at all, in a new country, where almost every man is the architect of his own fortune and the stock of descent; yet the Legislature has spoken its will; the language is too plain to be doubted, and addresses a prohibition to the courts not to be disregarded or evaded.
The half-blood are excluded from inheritances, and they and their descendants may inherit even an ancestral estate, provided they can show they are of the blood of the ancestor from whom it was transmitted to the intestate. Gardner v. Collins, 2 Peters 58. In newly acquired estates they inherit equally with the whole-blood in the same degree.
Hilliard, in his Treatise on Real Property (vol. 5,207) says; “In Arkansas, if there are no descendants, and the estate came from the father, it passes to him and his heirs. The half-blood and descendants inherit unless the estate is ancestral, in which case, none inherit but those of the ancestral blood.”
The word “blood,” in its technical and natural sense, includes the half- blood. Baker v. Chalfant, 5 Wharton 477. In a note in the last edition of his commentaries, Kent says: “The words in the laws of the several States, regulating the descent of ancestral inheritances, require that the heir should be of the blood of the ancestor. This would, in the ordinary sense of the words, admit the half-blood for they may be of the blood of the ancestor, though only half-blood to the intestate.” The 12th section of our statute is an exact transcript of the 15th section of the New York Revised Statutes, and, in considering that section, he further said that, not being of the blood of the ancestor, was the only ground on which the half-blood was excluded from ancestral inheritances. 4 Kent 404, note b., and authorities there cited.
In Torrey vs. Shaw, 3 Edw. Ch. R. 362, the Vice Chancellor, in commenting on a similar provision, observed that here is an exclusion as well where property comes by devise or gift-each of which is a species of purchase- as where it comes by descent, unless the parties claiming be of the blood of the donor. This proceeds, said he, upon the principle that the blood of the ancestor is necessary to enable collateral relations to take, where the property came from an ancestor by either of the modes of transmission spoken of.
In Dew v. Jones, 3 Halstead 340, the half-blood of the person dying seized, was held entitled to inherit an ancestral estate, because he was of the half-blood to the person dying seized, as well as of the blood of the ancestor from whom the lands came.
Our statute provides for ancestral and newly-acquired inheritances. The half-blood may inherit both, and will be excluded from the first only when lacking ancestral blood. With that exception, the half-blood and descendants, stand upon the same footing with the whole-blood and descendants.
After carefully considering each of the provisions of the statute, and all together as a whole, we have come to the following conclusions:
1st. That, as to both real and personal property, it was the design of the Legislature, when there were descendants of the intestate, to send down both to them, per capita, if in equal degree, and per stirpes, if in unequal degree, without any regard to the fact as to how the estate was acquired.
2d. That, as to personal property, it was the design where there were no descendants, that it should go to collaterals in the same way it would have gone to descendants, if there had been any; that is to say, per capita, if in equal degree, and per stirpes, if in unequal degree, and without inquiry as to how the property was acquired by the intestate.
3d. That, as to real estate, it was the design of the Legislature, where there were no descendants, to point out the lines of the succession, and that this is to depend on the fact, whether the inheritance is ancestral or new; and if ancestral, then whether it come from the paternal or maternal line.
4th. If the inheritance was ancestral, and come from the father’s side, then it will go to the line on the part of the father, from whence it came. not in postponement but in exclusion, of the mother’s line: and so on the other hand, if it come from the mother’s side, then to the line on the part of the mother, from whence it came, to the exclusion of the father’s line.
5th. If the inheritance be not ancestral, but a new acquisition, then. after a life estate, reserved in succession to the father and mother, if alive, it will go in remainder, first to the line of the intestate’s paternal uncle and aunts, and their descendants, in postponement of the mother’s line, until the former becomes extinct; and then to the line of the intestate’s maternal uncle and aunts, and their descendants; unless there should be kindred, lineal or collateral, who, either in right of propinquity, or by right of representation, stand in a nearer relation to the intestate than the uncles and aunts: in which case, such nearer kindred would take the inheritance to the exclusion of both of these collateral lines; and, in their hands, it would become an ancestral estate, and always go in the blood of the relative from whence it came, in the ordinary course of descent prescribed for ancestral inheritances Digest, secs. 10, and 11, p. 437.
6th. That, when the inheritance is fixed, by these facts, in any given line it will pursue that line until it becomes extinct, and the objects of the bounty and the order in which they succeed one another, and the proportion they take, are to be ascertained by the 1st section, which is to be considered as the general table of descent. The father, mother, brothers, sisters, and so on, mentioned in that section, are those who are to be considered when counting from any propositus, whether the propositus of a single line only, or the concurrent propositus of both lines, as the intestate is, as to personal property.
7th. In all cases where the inheritance is in any one line, if it goes in succession, per capita, if in equal degree, and per stirpes, if in an unequal degree, precisely as if the other line was extinct, and precisely as the inheritance of a bastard would take a course in his mother’s line, he having no father line at all.
8th. The half-blood and their descendants, take personalty, as well as realty, equally with the whole-blood, except that they are excluded from real estate when ancestral, if they lack the blood of the transmitting ancestor.
Sec. 23. “Every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all interest therein; Provided, That no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such full-blood Indian, unless acknowledged before and approved by a judge of the United States court for the Indian Territory, or a United States Commissioner.
Act of Congress April 26, 1906, (34 Stat. L. 137
Provided, That nothing contain, in the said Constitution shall be construed to limit or impair the rights of
person or property pertaining to the Indians of said Territory (so long as such rights shall remain unextinguished) or to limit or affect the authority of the Government of the United States to make any law or regulation respecting such Indians, their lands, property, or other rights by treaties, agreement, law, or otherwise, which it would have been competent to make if this Act had never been passed.”
Oklahoma Enabling Act June 16, 1906. (Sec. 1)
Sec. 21. All laws in force in the Territory of Oklahoma at the time of the admission of said state into the Union shall be in force throughout said State, except as modified or changed by this Act or by the constitution of the State, and the laws of the United States not locally inapplicable shall have the same force and effect within said State as elsewhere within the United States.”
Enabling Act June 16, 1906.
Sec. 2. “All law in force in the Territory of Oklahoma at the time of the admission of the state into the Union, which are not repugnant to this Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the State of Oklahoma until they expire by their own limitation or are altered or repealed by a law.”
Schedule to Constitution of Oklahoma.
Wilson’s Revised and Annotated Statutes of Oklahoma.
(6893) Succession is the coming in of another to take the property of one who dies without disposing of it by will.
(6894) The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the probate court, and to the possession of any administrator appointed by that court for the purpose of administration.
(6895) When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it is succeeded to and must be distributed, unless otherwise expressly provided in this code and the chapter on probate court, subject to the payment of his debts, in the following manner:
First. If the decedent leave a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife, and child, or issue of such child. ‘If the decedent leave a surviving husband or wife, and more than one child living, or one child living, and the lawful issue of one or more deceased children, one-third to the surviving husband or wife, and the remainder in equal shares to his children, and to the lawful issue of any deceased child, by right of representation; but if there be no child of the decedent living at his death, the remainder goes to all his lineal descendants; and if all the descendants are in the same degree of kindred to the decedent they share equally, otherwise they take according to the right of representation. If the decedent leave no surviving husband or wife, but leaves issue, the whole estate goes to such issue, and if such issue consists of more than one child living, or one child living and the lawful issue of one or more deceased children, then the estate goes in equal shares to the children living, or to the child living, and the issue of the deceased child or children by right of representation.
Second. If the decedent leave no issue, the estate goes in equal shares to the surviving husband or wife, and to the decedent’s father. If there be no father, then one-half goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation; if he leave a mother also, she takes an equal share with the others and sisters. If decedent leave no issue, nor husband nor wife, the estate must go to the father.
Third. If there be no issue, nor husband, nor wife, nor father, nor mother, then in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation; if a mother survive, she takes an equal share with the brothers and sisters.
Fourth. If the decedent leave no issue, nor husband. nor wife, nor father, and no brother or sisters living at the time of his death, the estate goes to his mother to the exclusion of the issue, if any, of deceased brothers or sisters.
Fifth. If the decedent leave a surviving husband or wife, and no issue, and no father, nor mother, nor brother, no; sister, the whole estate goes to the surviving husband or wife.
Sixth. If the decedent leave no issue, nor husband, nor wife, and no father nor mother, nor brother nor sister, the estate must go to the next of kin, in equal degree, excepting that when there are two or more collateral kindred. in equal degree, but claiming through different ancestors, those who claimed through the nearest ancestors must be preferred to those claiming through an ancestor more remote. However:
Seventh. If the decedent leave several children, or one child and the issue of one or more children, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such decedent descends in equal shares to the other children of the same parent, and to the issue of any such other children who are dead. by right of representation.
Eighth. If, at the death of such child who dies under age, not having been married, all the other children of his parents are also dead, and any of them have left issue, the estate that came to such child by inheritance from his parent descends to the issue of all other children of the same parent ; and if all tilt issue are in the same degree of kindred to the child, they share the estate equally, otherwise they take according to the right of representation.
Ninth. If the decedent leave no husband, wife, or kindred, the estate escheats to the Territory for the support of common schools.
(6896) Dower and courtesy are abolished.
(6897) Every illegitimate child is an heir of the person who in writing. signed in the presence of a competent witness, acknowledges himself to 1w the father of such child; and in all cases is an heir of his mother: and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the estate of his or her kindred. either lineal or collateral, unless before his death his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child or adopts him into his family; in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them intestate, and without issue, the others inherit his estate, and are heirs as here in before provided, in like manner as if all the children had been legitimate; saving to the father and mother respectively, their rights in the estate of the children in like manner as if all had been legitimate. The issue of all marriages null in law or dissolved by divorce, are legitimate.
(6898) If an illegitimate child, who has not been acknowledged, or adopted by his father, dies intestate, without lawful issue, his estate goes to his mother, or, in case of her decease, to her heirs at law.
(6899) The degree of kindred is established by the number of generations, and each generation is called a degree.
(6900) The series of degrees from the line; the series of degrees between persons who descend from one another, is called direct or lineal consanguinity; and the series of degrees between persons who did not descend from one another, but spring from a common ancestor, is called the collateral line or collateral consanguinity.
(6901) The direct line is divided into a direct line descending and the direct line ascending. The first is that which connects the ancestor with those who descend from him. The second is that which connects a person with those from whom he descends.
(6902) In the direct line there are as many degrees as there are generations. Thus the son is, with regard to the father, in the first degree; the grandson in the second; and vice versa with regard to the father and grandfather toward the sons and grandsons.
(6903) In the collateral line the degrees are counted by generations, from one of the relations up to the common ancestor, and from the common ancestor to the other relations. In such computation the decedent is excluded, the relative included, and the ancestor counted but once. Thus brothers are related in the second degree, uncle and nephew in the third degree, cousins german in the fourth degree, and so on.
(6904) Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent devise or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestors must be excluded from such inheritance.
(6905) Any estate, real or personal, given by the decedent in his life time, as an advancement to any child or other lineal descendant, is a part of the estate of the decedent for the purposes of division and distribution thereof among his issue, and must be taken by such child, or other lineal descendant, toward his share of the estate of the decedent.
(6906) If the amount of such advancement exceeds the share of the heir receiving the same, he must be excluded from any further protion in the division and distribution of the estate, but he must not be required to refund any part of such advancement; and if the amount so received is less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent.
(6907) All gifts and grants are made as advancements, if expressed in the gift or grant to be so made, or if charged in writing by the decedent as an advancement, or acknowledged in writing as such by the child or other successor or heir.
(6908) If the value of the estate so advanced is expressed in the conveyance, or in the charge thereof made by the decedent, or in the acknowledgement of the party receiving it, it must be held as of that value in the division and distribution of the estate; otherwise it must be estimated according to its value when given as nearly as the same can be ascertained.
(6909) If any child or other lineal descendant receiving advancement, dies before the decedent, leaving issue, the advancement must be taken into consideration in the division and distribution of the estate, and the amount thereof must be allowed accordingly by the representatives of the heirs receiving the advancement, in like manner as if the advancement had been made directly to them.
(6910) Inheritance or succession by right of representation takes place when the descendants of any deceased heir take the same share or right in the estate of another person that their parents would have taken if living. Posthumous children are considered as living at the death of their parents.
(6911) Aliens may take in all cases, by succession, as well as citizens; and no person, capable of succeeding under the provisions of this title, is precluded from such succession by reason of the alienage of any relative.
(6912) If there is no one capable of succeeding under the preceding sections., and the title fails from a defect of heirs, the property of a decedent devolves and escheats to the Territory; and an action for the recovery of such property, and to reduce it into the possession of the Territory, or for its sale and conveyances may be brought by the district attorney in the district court of the county or judicial subdivision in which the property is situated.
(6913) Real property passing to the Territory under the preceding section, whether held by the Territory or its grantees, is subject to the same charges and trusts to which it would have been subject if it. had passed by succession.
(6914) Those who succeed to the property of a decedent are liable for his obligations in the cases and to the extent prescribed by chapter 18.”
Sec. 9. “Provided, further, That if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March fourth, nineteen hundred and six, the homestead of such deceased allottee shall remain inalienable, unless restrictions against the alienation are removed there from by the Secretary of the Interior in the manner provided in section one hereof, for the use and support of such issue, during their life or lives, until April twenty-sixth, nineteen hundred and thirty-one; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from all restrictions; if this be not done, or in the event the issue hereinbefore provided for die before April twenty- sixth, nineteen hundred and thirty-one, the land shall descend to the heirs, according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions:
Provided further, That the provisions of section twenty-three of the act of April twenty-sixth, nineteen hundred and six, as amended by .this act, are hereby made applicable to all wills executed under this section.
Act of Congress May 27, 1908 (35 Stat. L. 312)
An Act entitled an act to amend section 626, of the Statutes of Oklahoma of 1893 entitled: “Succession.”
“Sec. 1. That section 6261 of the Statutes of Oklahoma of 1893 be .amended so as to read as follows:
Section 6261. When any person having title to any estate not otherwise limited by marriage contract dies, without disposing of the estate by will, it descends and must be distributed in the following manner:
First. If the decedent leave a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue of such child. If the decedent leave a surviving husband or wife and more than one child living and the lawful issue of one or more deceased children, one-third to the surviving husband or wife, and the remained in equal shares to his children, and to the lawful issue of any dressed child, by right of representation; but if there be no child of the decedent living at his death, the remainder goes to all of his lineal descendants: and if all the descendants are in the same degree of kindred to the decedent they share equally, otherwise they take according to the right of representation: Provided, if decedent shall have married more than once, the spouse at the time Of death shall inherit of the property not acquired during coverture with such spouse only an equal part with each of the living children of decedent. and the lawful issue of any deceased child by right of representation. If the decedent leave no surviving husband or wife, but leaves issue the whole estate goes to such issue and if such issue consists of more than one child living or one child living and the lawful issue of one or more deceased children, then the estate goes in equal shares to the children living, or to the child living, and the issue of the deceased child or children by right of representation.
Second. If the decedent leave no issue, the estate goes one-half to the surviving husband or wife ,and the remaining one-half to the decedent’s father or mother, or if he leave both father and mother to them in equal shares. If there be no father, then one-half goes, in equal shares, to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation. If decedent leave no issue, nor husband nor wife, the estate must go to the father or mother, or if he leave both father and mother, to them in equal shares. Provided; in all cases where the property is acquired by the joint industry of husband and wife during coverture, and there is no issue, the whole estate to go to the survivor, at whose death if any of the said property remain, one-half of such property shall go to the heirs of the husband and one-half to the heirs of the wife, according to the right of representation.
Third. If there be no issue, nor husband, nor wife, nor father, nor mother, then in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation, if the deceased, being a minor, leave no issue, the estate must go to the parents equally, if living together, if not living together, to the parent having had the care of said deceased minor.
Fourth. If the decedent leave no issue nor husband, nor wife nor father and no brother or sister is living at the time of his death, the estate goes to his mother to the exclusion of the issue, if any, of deceased brothers or sisters.
Fifth. If decedent leave a surviving husband or wife, and no issue, and no father, nor mother, nor brother, nor sister, the whole estate goes to the surviving husband or wife.
Sixth. If the decedent leave no issue, nor husband, nor wife, and no father nor mother, nor brother, nor sister, the estate must go to the next of kin, in equal degree, excepting that when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those who claimed through the nearest ancestors must be preferred to those claiming through an ancestor more remote, however.
Seventh. If the decedent leave several children, or one child and the issue of one or more children, and such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such decedent, descends in equal shares to the other children of the same parent, and to the issue of any such other children who are dead, by right of representation.
Eighth. If, at the death of such child, who died under age, not having been married, all the other children of his parents are also dead, and any of them have left issue, the estate that came to such child by inheritance from his patent descends to the issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally, otherwise, they take according to the right of representation.
Ninth. If the decedent leave no husband, wife, or kindred, the estate escheats to the state for the support of common schools.
Section 2. All acts, or parts of acts, in conflict with this act, be and the same are hereby repealed.
Approved March 20, 1909.”
Session Laws of Oklahoma, 1909. (p. 548-50)