On March 11, 1913, James A. Hill, one of the defendants in error, in the district court of Garvin county, sued John and William Hill and Uda Polk, adults, and Harry and Susie Hill, minors, by their guardian, William Hill, and Ruth Hill, by her guardian, Mattie Hill. The object of the suit was to establish plaintiff's interest in the land described in the petition to be one-seventh, and for partition of the tract. The case was tried on an agreed statement of facts, which are: That prior to the bringing of the suit, John T. Hill, a noncitizen of the Choctaw Nation, the father of plaintiff, married a white woman, also a noncitizen of the Choctaw Nation, who died, leaving her surviving as her only heir at law plaintiff, James A. Hill, the issue of said marriage; that thereafter John T. Hill married one Susan Walmer, a Choctaw Indian by blood, who died, leaving her surviving as the issue of said marriage, said John, William, Harry, and Susie Hill, and Uda Polk; that thereafter he married and died, leaving him surviving said Mattie Hill, his third wife, and Ruth Hill, the sole issue of that marriage, and who is not a member of any tribe or nation of Indians; that Thomas J. Hill, another child of the marriage of Susan and the father of plaintiff, after receiving his allotment in the Choctaw Nation, to wit, on January 29, 1913, died intestate at the *Page 709 age of nine years, without father or mother, leaving him surviving as his only heirs at law plaintiff and Ruth Hill, a brother and sister of the half blood, and the other defendants, brothers and sisters of the whole blood.
The inquiry arising upon the state of facts is: Did the brother and sister of the half blood inherit equally with the brothers and sisters of the full blood? The court held they did, but the court was wrong. Rev. Laws 1910 read:
"Sec. 8417. 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. * * *
"Sec. 8418. 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: * * *
"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 * * *"
— which, standing alone, means that the brothers and sisters of the half blood inherit equally with the brothers and sisters of the whole blood. For it is said in Estate v. Smith, 131 Cal. 433,63 P. 729, 82 Am. St. Rep. 358, that the expression "brothers and sisters of decedent," used in subdivision 2 of this same section, includes those of the half blood, as well as those of the whole blood. And that, too, whether, as we said inJefferson v. Cook, 53 Okla. 272, 155 P. 852, the estate is ancestral or a new acquisition. But, as section 8427, Id., is also a part of the governing statute, the question is: Does that section change the devolution provided for in the preceding section? It does. It reads: *Page 710
"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."
Which means that brothers and sisters of the half blood may inherit equally with those of the whole blood in the same degree, unless the estate is ancestral.
Section 4818 is substantially the same as section 1386 of Civil Code of California, and section 8427 supra, identical with section 1394 of that Code. In re Pearsons, 110 Cal. 524, 42 P. 960, speaking of the Code, the court said:
"Our Code has no allusion to 'the blood of the first purchaser,' and makes no attempt at any distinction founded upon the sources from which the estate of a decedent may have been derived, except in the single instance of kindred of the 'half blood' "
— and speaking to section 1394 (section 8427, supra), said:
"The section simply means that kindred of the half blood shall inherit equally with those of the whole blood, except in a certain case, and, in that case kindred of the half blood shall not inherit. * * * We think the plain grammatical construction of the clauses under consideration is that the kindred of the intestate of the half blood shall inherit equally with those of the whole blood, except that if the estate is ancestral only, such kindred of the half blood as are of the blood of the ancestor from whom the estate came shall inherit."
See, also, Estate of Smith, 131 Cal. 433, 63 P. 729, 82 Am. St. Rep. 358; Estate of Lynch, 132 Cal. 214, 64 P. 284. *Page 711
The question then is: Did Thomas J. Hill die seised of an ancestral estate in the land in question, and, if so, who are entitled to share in his allotment? That he died seised of an ancestral estate is no longer an open question in this jurisdiction, having been settled in Shulthis v. McDougal, 170 Fed. 529, 95 Cow. C. A. 615, and Pigeon v. Buck, 38 Okla. 101,131 P. 1083.
We are therefore of opinion that, as the allotment in question came to Thomas J. Hill, not by purchase, but by descent, and is ancestral, his brothers and sisters of the whole blood are entitled thereto to the exclusion of his brothers and sisters of the half blood; that is, to the exclusion of plaintiff and Ruth Hill, and for that reason the judgment of the trial court is reversed, with directions to set aside the judgment complained of and to enter judgment pursuant to the views herein expressed.
All the Justices concur, except SHARP and THACKER, JJ., who dissent.