My purpose in dissenting is that the laws of descent and distribution be not lightly considered, and further that "dead wood," if any, be cleared away so that the humblest citizen may know and be informed as to his property rights. I further base what I have to say upon the proposition, trite but true that it is not so important as to what the law is concerning property rights, as it is that it be stable and inflexible.
The author of the opinion herein says that subdivision 2 of section 11301 is the applicable statute, and that fact is so free from doubt that citation of authorities is unnecessary, and that said subdivision of said section is the only portion of the statute that could by any manner of reasoning be made applicable to the facts presented. But the fact that the proposition, like Banquo's ghost, is forever coming back, tends to dispute the assertion as well as the fact that in a prior case the same author employed a manner of reasoning leading to the contrary conclusion.
The facts are correctly stated in the opinion. The contention denied by the opinion is that the allottee having died a minor, unmarried, intestate and without issue, seized and possessed of her allotments of land which came to her by and through her father and mother, the same being in the nature of an ancestral estate, or an estate of inheritance, one-half having come by and through the mother and one-half through the father, subdivisions 7 and 8, supra, are exceptions to the proviso in subdivision 2, and provide for the descent to the parent of an estate of which a child dies seized, under specified conditions of minority, lack of issue and marriage. That exception is that the surviving parent is excluded from inheriting, and the property descends to the brothers and sisters of the deceased or their issue by right of representation.
It is said in the opinion that Gray v. Chapman,122 Okla. 130, 243 P. 522, is not controlling or even persuasive on the question here presented, and much space is devoted in distinguishing it. It is my opinion that it is controlling, if it is to exist as a rule of law, and that it cannot be rightfully distinguished.
The author of Gray v. Chapman, in attempting to narrow the scope of the law there announced, now says:
"That perhaps our discussion as to ancestral estates took too wide a scope."
It was also said in that opinion that the language used should not be considered apart from the particular facts there involved, and that "our purpose was to confine our discussion to a determination of the meaning of the language in the half-blood statute only, it being the only statute involved."
In Gray v. Chapman that excludes Frank Fulsome, the half-brother of Pharo Fulsome, from inheriting by reason of section 11310, the one-half blood statute. Moreover, this court there compared the provisions of Mansfield's Digest, in force prior to statehood, with the provisions of our statute, pertaining to estates of the character considered and said: "There is little, if any, material difference," and said, further, "that Oklahoma has recognized ancestral estates, the above-quoted portions of our statute being the law applicable thereto," which above-quoted portions evidently referred to subdivisions 7 and 8.
In my opinion Gray v. Chapman, supra, stamped an allotment received by reason of membership in a tribe as an ancestral estate and applied the rules of inheritance thereto as provided by subdivisions 7 and 8, wherein it was said:
"This being true as to allotments actually inherited, then is not the allotment given to a citizen of the Five Civilized Tribes by reason of his membership in the tribe, his membership, and therefore his right to allotment being acquired through or from the blood of his tribal parents as much ancestral as lands actually acquired by descent, and should not the same rule of inheritance therefore apply as to lands acquired directly by inheritance from an ancestor actually seized during a lifetime? We think so.
There this court said that in the application of the laws of descent and distribution of Oklahoma, the same rule of descent shall be applied to the individual allotment of a deceased allottee as if by actual inheritance from the ancestor, and such expression followed the setting out of subdivisions 7 and 8. *Page 272
This court then decided that an allotment of land to a member of the Five Civilized Tribes by blood is at least analogous to an ancestral estate, and will therefore be so considered in applying the applicable provisions of our law. The opinion in Gray v. Chapman, supra, repeatedly uses language indicating that the author had in mind the three quoted provisions of the law of Oklahoma with reference to ancestral estates, and not simply the half-blood statute. Examples are: (1) "And an allottee whose father anal mother were both of Indian blood, dying intestate, unmarried, and without issue, his estate ascends to them and their heirs in equal shares," and (2) "* * * For our own Code specifically provides for ancestral estates, and the reasoning in the cases above cited applying and construing the applicable provisions of chapter 49 of Mansfield's Digest of the Laws of Ark. applies with equal force, we think, to the sections of our law above quoted. * * *"
What sections were quoted? Subdivisions 7 and 8, sections 11301 and 11310, supra.
Gray v. Chapman closes with this paragraph and thought:
"Pharo Fulsome left a half-brother, Frank Fulsome, on his father's side, and a grandmother, Jane Gray, plaintiff herein, on his mother's side. Under the Oklahoma statute they are related to him in the same degree, the grandmother in the direct relation, and the half-brother, collateral. His right of allotment coming to him both through the father and mother, then it must go to their heirs equally. It follows, then, that Frank Fulsome and the plaintiff, Jane Gray, each inherited an undivided one-half interest in the individual allotment of Pharo Fulsome."
That statement and judgment is not based on section 11310, supra, and Frank Fulsome was not excluded from inheriting all the estate by reason of the half-blood statute, but to the contrary he was held to be the heir of his father, and, as such, inherited a one-half interest, and Jane Gray, the grandmother on the mother's side, inherited a one-half interest as heir of the mother.
In syllabus, par. 1, of the opinion herein, it is said:
"In determining the descent of intestate's estates, it is not necessary to look to the source of title unless particular statute under which descent is cast requires us to do so. Subdivision 2, section 11301, C. O. S. 1921, does not so require, while subdivisions 7 and 8 of said section 11301, and section 11310, C. O. S. 1921, do so require."
Whereas in syllabus, par. 3, of Gray v. Chapman, it is said:
"In this jurisdiction estates are either ancestral or nonancestral. * * * The source or origin of an estate must be first ascertained before its nature or character can be decided, then the law of descent and distribution applied to it."
In the opinion stress is placed upon the necessity of determining the nature of the estate, and then applying the law to the estate rather than the estate to the law. It I understand it, those propositions are contradictory, and represent two diverse processes. Then, if in all cases the nature of the estate must first be determined, and if such an allotment more nearly approximates an ancestral estate, then the law applied to the estate as found, subdivisions 7 and 8, by the rule in Gray v. Chapman, would govern, rather than subdivision 2.
The case of In re Heirship of Yaholo Johnson, No. 15783, followed Gray v. Chapman, saying:
"An allottee dying possessed of an allotment of land, being an ancestral estate, leaving as his only heirs a maternal half-sister and two paternal first cousins, held that one-half of said allotment goes to the half-sister and an undivided one-half goes to the two first cousins in equal shares." (Not yet final.)
There is another feature of the opinion herein from which I anticipate trouble; that is, that it creates two kinds of ancestral property, contrary to the universal rule and something new to this jurisdiction.
For these reasons, I dissent.
MASON, C. J., concurs in this dissent.