(dissenting).
This case is very important in my opinion for the reason I believe the majority is upsetting a rule of property which has been followed in Oklahoma since Statehood. At least it has been the law in this State since May 13, 1924, when rehearing was denied in the case of Thompson v. Smith, 102 Okl. 150, 227 P. 77. The fourth para, graph of the syllabus in that case. is: as follows:
“Section 8427, Revised Laws 1910 (section 11310, Comp.Stat.1921), provides : ‘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.’ Held, said section qualifies the general rule as to inheritance by those of the half blood found in second subdivision of section 8418, Revised Laws 1910 (section 11301, Comp. Stat.1921), and the half blood is excluded from an inheritance that came to the deceased by descent, devise or gift of some one of his ancestors, and that the rule announced in Kelly’s Heirs v. McGuire, 15 Ark. [555] 586, be followed.”
*974This is now section 222, 84 O.S.1951. We said in that case:
“It is plain from the language used in section 8427, supra, that, where the inheritance comes to the intestate by-descent, devise or gift, it was intended in such cases in providing for the devolution of such an estate, where there are kindred of the half blood, to exclude all those who are not of the blood of such ancestor from whom such an estate had come. Then the estate goes to those kindred nearest in blood to the deceased and of the blood of the ancestor from whom such estate came.”
This case plainly holds that where there are kindred of the half blood, both those of the half blood and those of whole blood c*f the deceased who were not of the blood of the ancestor from whom deceased received the property could not take. It has not been overruled.
As heretofore shown, this opinion also approves the case of Kelly’s Heirs v. McGuire, IS Ark. 555. In that case it was said that 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 comes from the mother’s side, then to the line on the part of the mother, to the exclusion of the father’s line.
In their discussion of the 12th section of the Arkansas Law on descent and distribution on the half-blood provision which is practically the same as ours the Supreme Court had this to say in this Kelly’s Heirs v. McGuire:
“It has been contended, with much ability and ingenuity, that the restriction in the latter clause of the section, applies to the descendants of the half-blood only; and that such is the gram-js.iatical 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 punctuation, as 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 act.
“It is 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.”
This provision, as does ours, comes from New York. Ours through Dakota Territory by the way of the Field Code.
The estate involved in this case is ancestral. We have recognized ancestral estates in Oklahoma in several cases. One of the last is In re Moran’s Estate, 174 Okl. 507, 51 P.2d 277, 103 A.L.R. 227. In Hill v. Hill, 58 Okl. 707, 160 P. 1116, we referred to an ancestral estate and held that those of the half-blood did not inherit an ancestral estate. This case was reversed on other grounds but not on the point under consideration.
We held “flat and dry” in Gray v. Chapman, 122 Okl. 130, 243 P. 522, 523, that *975ancestral estates could not be inherited by “those of the half-blood who were not of the blood of the ancestor.” Under the definition of an ancestral estate as given in that case, this would be such. We changed the rule in the In re Yahola’s Heirship case, 142 Old. 79, 285 P. 946, when we held that land allotted to a member of the Creek Nation was not an ancestral estate but a new acquisition. But this holding in no way affected the decision as to the inheritance of ancestral estates.
There is a comprehensive note in 141 A.L.R. 976, dealing with this question. Our Court is definitely classed as one of those states that does not let those who are not of the blood of the ancestor from whom decedent received property through inheritance take such ancestral property under the laws of descent and distribution from the decedent.
In New York those of the half-blood were formerly always excluded from an ancestral estate when they were not of the blood of the ancestor, regardless of degree. There has been a statutory change there.
In Thompson v. Smith, supra, we have followed Arkansas on the proposition that those not of the blood of the ancestor in ancestral estates do not inherit. So we have held in the following cases: Hill v. Hill, supra; Thompson v. Smith, supra; Gray v. Chapman, supra; Zweigel v. Lewis, 139 Okl. 171, 281 P. 787; In re Moran’s Estate, supra, and In re Long's Estate, 180 Okl. 28, 67 P.2d 41, 110 A.L.R. 1002, that those who were half-blood kindred of the decedent could not take any part of the ancestral estate when they were not of the blood of the ancestor.
In my opinion even if we had not early adopted the Arkansas view a sound interpretation of section 222 would necessitate the holding that those who were not of the blood of the ancestor, but otherwise related to the decedent by blood would not inherit. The language says “Kindred of the half-blood inherit equally with those of the whole blood in the same degree.” Kindred of the half and the whole blood are being considered so the words “in which case all those” refer to both those of the whole blood as well as those of the half blood.
Actually in my opinion the paternal grandfather is less than a half-blood relation of the decedent in this case. If Norman was a half-blood relation of Mildred’s, the grandfather was bound to be of less blood because Mildred’s father carried half the blood of the grandfather, John DeRoin, and Norman and Mildred would only carry one-fourth of the blood of the grandfather.
I submit that the source of the property controls in the descent of an ancestral estate and when it does either a grandparent on one side of the family, or an uncle or aunt on the other side, excludes the other where he or she is in the line from which the property came. Gillespie v. Foy, 40 N.C. 280; Latimer v. Rogers, 40 Tenn. 692 and 26A C.J.S. Descent and Distribution, § 36.
Also in Thompson v. Smith, supra, we refused to follow the California Supreme Court on this question. In that case we quoted with approval from the Utah case of Amy v. Amy, 12 Utah 278, 42 P. 1121, which criticised the holding of the Michigan and Wisconsin Courts which were similar to California and Alabama. To me it is very unreasonable to hold that our Legislature intended to adopt a statute which would put a grandfather ahead of a decedent’s half-brother when clearly the half-brother carried more of the same blood of the decedent than did the grandfather.
Since we have so firmly established the principle that those of the half blood cannot inherit in a case like this and go along with the Arkansas rule why cannot we let well enough alone and leave the change of rules of property to the Legislature which should be chary about changing our fundamental rules of property.
I dissent.