I concur in the following conclusions reached in the majority opinion: (1) That the estate which Woodrow Pryor inherited from his father was an absolute estate, and (2) that upon his death his estate therein passed to his heirs under the laws of the United States.
With these two conclusions as the premise, the sole remaining question is what such laws provide, and is therefore simply one of construction. It is the holding of the majority that subdivision 7 (84 O.S. 1941 §213) is applicable and therefore controlling. In this 1 cannot concur. In my opinion subdivision 7 is not operative in the instant case and the estate passed under section 6 of the Osage Allotment Act (34 St. L. 539).
The basis of the majority conclusion is that the intent and purpose of section 6 was merely to change subdivision 2 of the Oklahoma statute, and hence, with the congressional adoption of the Oklahoma law, subdivision 7 was included and stands in pari materia with section 6. And proceeding on this premise it is sought to reconcile the two provisions by holding that subdivision 7 applies where the estate was inherited from a deceased parent and section 6 where the land was not so inherited. And it is urged that the intent to so limit section 6 is reflected in the fact that thereunder both parents take equally, a situation that cannot obtain where the estate was inherited from a parent. In support of such conclusion there is cited the holding of this court in He-ah-to-me V. Hudson, 121 Okla. 173, 249 P. 138, and United States v. Hale, 51 Fed. 2d 629.
In my opinion neither case gives any authoritative support to the conclusion reached, but that each, to the extent it is authoritative, is contrary thereto. In the Hale Case the land of which the minor died seized was inherited by the minor, a sister and his father from his mother. Thereafter the lands were partitioned and it was of the portion thereof set apart to him in kind that he died seized. It was contended that by reason of the ancestral character of the estate the sister took to the exclusion of the father. The court held:
*23“It was not an inheritance but a title which had come to him by purchase. It vested in George Bigheart as his father and heir, under the terms of section 6 of the Allotment Act of June 28, 1906 (34 Stat. 539, 545), and not under the state law.”
Having reached the conclusion that the estate was not ancestral, there was no occasion for the court to determine whether subdivision 7 or section 6 controlled the devolution. Therefore, the statement that subdivision 7 would apply if the estate were ancestral is obiter dictum. The manner in which it is expressed indicates no more than that the conclusion was based solely on the holding in He-ah-to-me v. Hudson, (supra), since it is not otherwise supported and is entitled to no greater weight than the holding in that case. However, the above-quoted holding to the effect that the father took the entire estate as next of kin by force of section 6, which holding was decisive of the question determined, is diametrically opposed to the idea that section 6 was designed by Congress to be operative only where both parents survived the intestate, which is made one of the bases for the majority’s conclusion.
Concerning the case of He-ah-to-me v. Hudson, supra, the following is to be said: There a deceased incompetent Osage allottee was survived by his wife and two children, to whom the estate descended. About one year after the death of the father one of the children died at the age of two years a'hd the question there, as here, was whether the mother or the other child took the entire interest of the deceased child. We there held that He-ah-to-me, who was the surviving sister of the deceased child, by virtue of subdivision 7 took the deceased child’s interest to the exclusion of the mother.
It is manifest that the question considered by the court was merely whether one or another of the subdivisions of the Oklahoma statute controlled the devolution, and it is evident that the applicability of section 6 was neither presented nor considered. In such circumstances courts decline to recognize that the decision there can be deemed decisive of the question here for reasons clearly stated in United States v. Mitchell, 271 U. S. 9, 70 L. Ed. 799, as follows:
“A question not raised by counsel or discussed in the opinion of the court has been decided merely because it existed in the record and might have been raised and considered.”
The decision in that case rests on the Oklahoma statutes operating solely as such and without regard to section 6 of the Federal law. The holding there can afford support for the majority opinion only on the assumption that section 6 of the Act of Congress was merely a substitute for subdivision 7 of the Oklahoma statute, thus making subdivisions 2 and 7 Federal laws in pari materia. Considering them to be in pari materia, the reasoning and conclusion in that case would sustain the majority holding. But if the two provisions are not in pari materia, which I shall hereinafter undertake to show, the reasoning therein not only does not support but actually overturns the basis upon which the majority opinion rests.
In the He-ah-to-me Case we quoted with approval the California construction of the statute, which is requoted in majority opinion, and recognized: (1) that there would be conflict between subdivision 2 and subdivision 7 but for reconciliation; (2) that for the purposes of reconciliation the provisions of subdivision 7 are to be considered as incorporated in subdivision 2 as an exception thereto; and (3) that the effect of subdivision 7 when applicable is merely to change the course of devolution of the property of the minor, the same thing to which the exception in section 6 is specifically directed.
The first mentioned determination accords with my view that there exists a conflict between subdivision 7 and the rule of descent set forth in the exception in section 6 and that such conflict *24can be resolved only upon the theory that both are in pari materia, a theory that cannot be indulged for reasons to be stated. The second mentioned determination affords an answer to the contention that the exception in section 6 was directed solely at the rule in subdivision 2. If subdivision 7 is to be construed as an incorporated exception to the rule there announced, the effect of the exception in Section 6 is to be regarded as a substitute for both. The subject matter of both is descent upon death pf a child and the exception in section 6 which deals therewith announces a single rule therefor. The general rule in such case (59 C. J. 922, §522) is declared in State ex rel. Matzdorf et al. v. Scott et al., 52 Nev. 232, 286 P. 119, to be:
“Where it is plain that it is legislative intent in later act to embrace whole subject, then portion of earlier act involving same subject matter which is not included in later act is considered as discarded.”
In recognition of weight to be accorded contemporaneous construction of the law by executive officers of the government whose duty it was to administer the law, the majority opinion concedes that from the time of the Allotment Act until 1912, when jurisdiction of the administration of the estates passed to the state courts, the Interior Department construed section 6 to operate in such cases to the exclusion of subdivision 7. Emphasis is placed, however, upon the fact that since an opinion of the Solicitor General rendered to said department in 1928, wherein said subdivision was held to be operative, the administration had been in accordance therewith. And it declared “The conclusion of the Solicitor General in his opinion to the department is the same as ours.” The language of the Solicitor which reflects his conclusion and the reasons therefor is as follows:
“The state statute which fixes the succession in the brothers and sisters of deceased unmarried minors does not deal with the estate of such minor but concerns the original estate of the deceased ancestor. The estate which vests in the minor issue of such decedent is in its nature conditional in that if such issue dies during minority and unmarried, the course of its devolution is continued from the ancestor and not commenced anew with the death of the unmarried infant. This is the condition upon which the infant receives the inheritance and the state statute which annexes the condition is not in conflict with the exception in the Federal statute.”
In the majority opinion it is said:
“Under our statute (84 O.S. 1941 §212) and the decisions of this court (Seal v. Banes, 168 Okla. 550, 35 P. 2d 704; Davis v. Morgan, 186 Okla. 30, 95 P. 2d 856), upon the death of Antwine Pryor his entire estate descended and upon such descent became immediately vested in his heirs, of whom Woodrow Pryor was one.”
I cannot see the fundamental accord between the opinion of the Solicitor and that of the majority of the court in view of the latter repudiating the basis upon which the former rests unless it be that both the opinion of the Solicitor and that of the majority assume that section 6 of the act and subdivision 7 are in pari materia. I am constrained to feel that the weight to be accorded such opinion in the instant case cannot properly exceed in degree the extent to which the reasons therefor are to be recognized as sound. The effect of the Solicitor’s holding is that the estate passed not as the estate of the deceased minor but as that of'the ancestor.
Since the entire estate passed to the minor in this case, and he having died intestate, the estate necessarily passed from him by the law of succession. Under 84 O.S. 1941 §211, it is provided:
• “Succession is the coming in of another to take the property of one who dies without disposing of it by will.”
As we have seen, the estate of the heir is complete and in no sense conditional and it follows that the condition mentioned is something that inheres not in the estate of, the heir but in the law, *25and that too the law of succession. Succession laws do not impair the estates of the living (18 C. J. 862) but operate on estates of the dead and then only in the event same have not been.disposed of — a recognition of the superior power incident to the ownership. In principle the condition imposed by subdivision 7 that it will control the descent in a certain contingency is no different than that imposed by 84 O.S. 1941 §211, supra, that the law of succession will apply in the contingency therein mentioned.
It is my belief that the holding which limits section 6 in its operation to subdivision 2 is not only not sustained by any of the authorities relied on, but that they support the conclusion that the section, if considered as applying to the Oklahoma statute as a whole, is in conflict with subdivision 7.
It is my opinion that section. 6 is a qualification of the Oklahoma statute of descent as a whole and thus repeals every provision of the statute in conflict therewith. This court has so held.
Section 6 of the Allotment Act, which was enacted to be, and must be accepted as, expressive of the congressional intent, is as follows:
“That the lands, moneys, and mineral interests, herein provided for, of any deceased member of the Osage Tribe shall descend to his or her legal heirs, according to the laws of the Territory of Oklahoma, or of the state in which said reservation may be hereinafter incorporated, except where the decedent leaves no issue, nor husband nor wife, in which case said lands, moneys, and mineral interests must go to the mother and father equally.”
From a consideration of its language there is absolutely no warrant to say the exception therein had reference solely to subdivision 2 of the Oklahoma statute. And, in my opinion, to say so is to distort the words of the act which expressly declare that the exception applies to the Oklahoma laws of descent as a whole and therefore is as broad in its scope as the laws to which it applies. Because, since it is no less comprehensive than the laws adopted, it follows that it must operate co-extensively therewith (Washington v. Miller, 235 U. S. 422, 59 L. Ed. 295; Grayson v. Harris, 267 U. S. 352, 69 L. Ed. 652). So considered, the rule of descent therein prescribed is superior to and not in pari materia with provisions of the Oklahoma statute that are inconsistent therewith. And that such is the case we have expressly declared. In Re Mosier’s Estate, 109 Okla. 228, 235 P. 199, we declined to recognize the contention that by reason of the provision of the Enabling Act and section 2 of the Schedule to the Constitution of Oklahoma the territorial laws of descent and distribution were placed in force and made applicable to Osage Indians, and there held:
“That the laws of descent and distribution of the State of Oklahoma supplanted the laws of the territory of Oklahoma as to descent and distribution, put in force and effect in the Osage Tribe by section 6 of the Allotment Act of 1906, but with the exception set out in said section 6 of the Osage Allotment Act.”
And further as follows:
“There is no special act of the Congress repealing or supplanting the exception contained in section 6 of the Osage Allotment Act of June 28, 1906, which was in the nature of a special enactment, and, therefore, said exception has never been repealed.”
And, for the purpose of the application of the law, we there held that section 6 overturned subdivision 3 of the Oklahoma statute, which was in conflict with the terms thereof. The conflict in subdivision 7 is no less apparent than that of subdivision 3. The application of section 6 to subdivision 3 eliminates any idea that it was limited in its operation to subdivision 2, and being not so limited it was as fully operative to overturn subdivision 7.
In my estimation the only countenance of correctness the majority opinion *26can obtain is through the possible conclusion, asserted but not supported by authority, that the exception in section 6 is to be deemed to apply only where both parents survive. If such be true, is would follow not only that the sole surviving parent could not inherit property that the child inherited from the deceased parent, but also that the survivor could not inherit property that was obtained from other sources, including the child’s allotment. Hence to hold that such construction would limit' the force of the section to that of an amendment to subdivision 2 is to incorporate a qualification that is not there, a practice we have condemned (Pasley v. Union Nat. Bank of Bartlesville, 137 Okla. 171, 278 P. 621). Had it been the intent of Congress to merely qualify the effect of subdivision 2 it could easily have said so in no uncertain terms. It could have directed the exception expressly thereto or otherwise manifested such intent. It is more reasonable to presume that Congress intended that upon the death of the child the parents as its next of kin take as a class and, therefore, if both be living take equally, than that neither could take unless the other survived. Such is the effect of the holdings in both the Hale and Mosier Cases. And so construed, there is no room for the operation of subdivision 7.
And I consider it more reasonable to conclude that Congress in making the exception co-extensive in operation with the whole Oklahoma law of succession designed to overthrow the doctrine of ancestral estates as reflected in subdivision 7 and in denial thereof substitute therefor a law which recognizes that the source of the title is tribal rather than individual and the parents to be mere conduits so long as the descent is cast from restricted members.
The death and descent in the instant case comes squarely within the express language of section 6. And such being true, I am of the opinion that there can be no warrant to hold otherwise. And with all due respect to my associates who concur in the majority opinion I insist that no warrant so to do is reflected in the opinion.
BAYLESS, J., concurs in these views.