dissenting:
The facts are succinctly stated by the majority. It is the application of the law to the facts that prompts this opinion.
By way of clarification and for sake of the argument let us assume for the moment that the seven children of Henry and Virginia Pratt were not restricted Indians. At the death of the father/husband, Virginia would have inherited u/d Vtrd of the 480 acre estate and the children an u/d ’/-th of %rds (%i each) of such estate. Under the assumed conditions when Virginia contracted to sell to Drummond all she was awarded in the Bangs Estate, such a contract would have entitled Drummond to specific performance action for an u/d Vsrd of the 480 acres. Virginia’s statutory share was Vsrd of the entire 480 acres under 84 O.S. 1971, § 213, First.
But, because the seven siblings of Henry and Virginia Pratt were restricted Indians, they are subject to 37 Stat. 86, § 3 which in pertinent part states “. .. no land shall be sold or alienated without the approval of the Secretary of Interior,” or in this case the Muskogee, Oklahoma area director of the Bureau of Indian Affairs. See USCS Uncodified Material 1369.
By the approval of the Secretary of Interior (Secretary or Bureau) of the family settlement or division of the land in the Henry Pratt Estate, descending from the Bangs Estate, the u/d 2/«st interest in each of the seven children as to the 160 acres was set over to Virginia (sold or alienated under 37 Stat. 86.) The alienation was in exchange for Virginia’s u/d '/3rd in the remaining 320 acres. The approved alienation preserved the fractional interests in the estate of the widow and children and, in reality amounts to or is tantamount to an alienation of the seven children’s interest in the separated 160 acres awarded to Virginia under the family partition settlement. (Partition in kind.)1
When the Secretary approved the family settlement of the Bangs inheritance in the husband/father’s estate (Henry Pratt,) he approved an alienation under 37 Stat. 86 of *642the seven restricted Indians u/d %rds interests in at least 160 acres of their properties.2
There can be little doubt the approved partition dealt with amounts to an alienation and since the United States Supreme Court has held a guardian’s lease of restricted Osage land is subject to approval by the Secretary of Interior, certainly the “partition in kind” of Osage'land is likewise “burdened.”3
The Secretary’s authority to condition the disposition in both the Henry Pratt and Bangs Estate is established.4 What then the majority opinion accomplishes or affects by the action of the Osage County District Court, is the negation of the Secretary’s power of approval.
II
For another reason the majorities’ position is not well founded.
The object of this action is specific performance of contract for real property. The res controversa is what constitutes “all the land which she (Virginia) may inherit from the said Myron Bangs.”5 (Parenthetical phrase supplied.)
The Drummonds argue, and the majority adopt the theory, that on the death of Henry Pratt, an u/d ‘/3rd of 480 acres vested in Virginia and she thereafter contracted to sell this inheritance to G. Drummond.
But, the majority opinion overlooks three paragraphs in the sales contract, which I believe must be considered in dealing with the res controversa. Virginia states she is a claimant to an interest in all the real property owned by her husband in the Bangs Estate. She agrees that after it has been ascertained what proportionate part she will eventually own, she will sell her interest in such land as Pratt’s widow to Drum-mond.6
In construing a contract the entire instrument should be read together, and if possible every part should be made effective giving words their ordinary and accepted meaning.7 Likewise, in construing contracts a court should place itself in the position of the contracting parties at the time the contract was entered into and consider the instrument, the circumstances prompting it, as well as the surrounding circumstances as well. The court should then determine from consideration of such elements the sense or meaning of the contract.8
*643hi
The real property and controversy has its root in the estate of Myron Bangs. By the decree in the Bangs Estate recorded in the County Clerk’s records 9-24-70, the real property was set over and vested in the estate of Henry Pratt:
“Subject to the heirs of the Estate of Henry Pratt (Jr.) agreeing by supplemental settlement on a division of land ...”
I conclude Virginia took nothing except the full interest in and to 160 acres.9
The Henry Pratt final account filed 3-15-63 ordered, adjudged and decreed that the contingent interest of Henry Pratt’s Estate in the Estate of Bangs was in litigation in the Department of Interior and the Courts of Oklahoma. It specially ordered, adjudged and decreed that the Pratt Estate remain open, “until the interest of the decedent (Henry Pratt) can be determined and further proceedings had ...” (Parenthetical phrase supplied.)
The interest of Pratt heirs therefore remained contingent until approval by the Secretary. This to me is the only logical conclusion to be drawn and it would follow therefore, that no rights to an u/d Vhrd of 480 acres were in Drummond as the buyer under the contract. No interest could vest until the Secretary of Interior’s approval of the family partition settlement.
I conclude that Virginia could never have sold or conveyed to Drummond an u/d '/¡rd in the 480 acre Bangs property. She could have contracted only to sell her full interest in the 160 acres which alienated interest bore the approval of the Secretary of Interior.
I am authorized to state that Justice Irwin supports the views herein expressed.
. See also § 6, 37 Stat. 86, Ch. 83, April 16, 1912:
“... Provided, That no partition or sale of restricted lands of a deceased Osage allottee shall be valid until approved by the Secretary of Interior. Where some of the heirs are minors .. . partition of said land shall be valid when approved by the Court and the Secretary of Interior. (Emphasis by statute). See also 25 C.F.R. § 127.54.
. Heirs’ contract dated 4-16-70, approved by Director of BIA 5-25-70, provided in pertinent part:
“(1) Upon final distribution of the Estate of Henry Pratt, Jr., Virginia Harragara Johnson shall receive as her full distributive share of the realty passing to the Estate of Henry Pratt, Jr., from the Estate of Myron Bangs, Jr., and as her separate property free and clear of all claims upon the part of PARTIES OF THE SECOND PART (second parties are the seven Indian heirs), the following described realty, to-wit:
Lot 4, Section 3; Lots 1 and 2, Section 4, Township 23, Range 9 SE'A of SWA of Section 33, Township 24, Range 9, Osage County, Oklahoma.” (Parenthetical phrase supplied).
. La Motte v. United States, 254 U.S. 570, 41 S.Ct. 204, 65 L.Ed. 410 (1920).
. Scott v. Beams, 122 F.2d 777, 778, 786 (1941 10th Cir.); Udall v. Taunah, 398 F.2d 795, 797 (1968 10th Cir.)
. From the Contract of Sale between Drum-mond and Virginia, see footnote 2, supra.
. “WHEREAS, first party is a claimant to a portion of the Estate of Myron Bangs, deceased, and will, if successful in her claim, become an owner of an interest in all the real property owned by the said Myron Bangs, deceased; and
WHEREAS, the identity of the heirs of Myron Bangs has not yet been ascertained and the proportionate part of his property which will eventually be owned by the first party; and
WHEREAS, it is the desire of the first party to sell her interest in any land which she may inherit from the said Myron Bangs and it is the desire of the second party to purchase the same.
NOW, THEREFORE, IN CONSIDERATION ...” (Contract received as evidence under pretrial order.)
. Brown v. Coppadge, 153 P. 817, 54 Okl. 88 (1915); Wolf v. Blackwell Oil and Gas, 186 P. 484, 77 Okl. 81 (1920).
. Iron Mountain Oil Co. v. Edwards, 227 P. 150, 100 Okl. 4 (1924).
. See footnote 2, supra.