ELTING, J.
This was originally a proceeding commenced in the county court of Johnston county instituted by Ruby Broke-shoulder in the matter of the estate of Cammack Brokeshoulder, deceased, Ruby Brokeshoulder, administratrix, for the purpose of having heirship declared, and Josephine Brokeshoulder intervened in said proceeding and contended that she was the lawful wife of Cammack Broke-shoulder and that Riiby Brokeshoulder was not the lawful wife of Cammack Broke-shoulder. In said hearing in the county court the issue was determined against Josephine Brokeshoulder and Ruby Broke-shoulder was declared to be the lawful wife of Cammack Brokeshoulder, deceased, and declaring that Josephine Brokeshoulder was not the lawful wife and not entitled to inherit.
Josephine Brokeshoulder also claimed that she was entitled to be the administratrix or entitled to nominate the administrator of the estate of Cammack Brokeshoulder in lieu of Ruby Brokeshoulder, who had theretofore been appointed administratrix. In
tlie event Josephine Brokeshoulder was declared the lawful wife, then she would have the right to select and nominate the administrator. All of these issues were found aga'inst Josephine Brokeshoulder and in favor of Ruby 'Brokeshoulder 'in the court.
Josephine Brokeshoulder appealed from the order and finding of the county court to the district court of Johnston county, and in the trial of said matter the district court affirming the judgment of the county court, and Josephine Brokeshoulder has appealed from the judgment of' the district court affirming- she judgment of the county court to the Supreme Court.
The essential facts in this case are: That Cammack Brokeshoulder was a Mississippi Choctaw Indian, and that in 1906 he left Kemper county, Miss., and came to Oklahoma for the purpose of establishing his right to the selection of an allotment as a Mississippi Choctaw. He established his right and was enrolled as a Mississippi Choctaw and received a full allotment of land as such Mississippi Choctaw, which land and the proceeds thereof constitute his estate, and the question as to which one. Ruby or Josephine Brokeshoulder, has the right as his surviving widow to share therein is the question that is involved in this action.
In the meantime Cammack Brokeshoulder had returned to Kemper county, Miss., and on the 29th day of September, 190S, at Moscow, Kemper county, Miss., he was married to Josephine Brokeshoulder according to the laws of the state of Mississippi, under a marriage license duly issued by the proper authority in Kemper county. This marriage was performed by an Indian preacher named S. J. Tubby. On May 30, 1912, there was born of said marriage one child, Mabel Ellis Brokeshoulder. Cam-mack Brokeshoulder and Josephine Broke-shoulder. nee Silistan, lived together in Kemper county, Miss., from the date of said marriage until November, 1912, as man and wife, and during such time, as heretofore stated, Mabel Ellis Brokeshoulder was born of said marriage.
In November. 1912, the deceased. Cam-mack Brokeshoulder, left the state of Mississippi and came to Carter county, Okla., leaving his wife and child, as heretofore mentioned, in Kemper county. Miss. Cam-mack Brokeshoulder lived with some one of his brothers in Carter county for a time, and then moved to Johnston county, state of Oklahoma, where he resided with another brother. While living in Johnston county, and on July 18, 1914, he was married to the defendant in error, Ruby Broke-shoulder, at. Ardmore, in Carter county, Okla., having procured a license under tire laws of the state of Oklahomai Cammack and his second wife resided at and near Pontotoc, in Johnston county, Okla., from date of said marriage until his death. To this second marriage there were born two children, Corrine and Cammack Broke-shoulder, Jr.
In March, 1920, Cammack Brokeshoulder died in Johnston county, Okla., intestate.
It also appears from the record that Josephine Brokeshoulder was married to Edgar Tubby on November 13, 1915, in Kemper county, Miss.
These facts as above detailed are admitted, or at least they are proved and not controverted.
The issue in this case is the question of the legality of the second marriage by Cam-mack Brokeshoulder with Ruby Broke-shoulder consummated in Carter county, Okla., July 18, 1914. It being admitted that there was a legal marriage consummated between Josephine Brokeshoulder and Cam-mack Brokeshoulder in Kemper county, Miss., in 1908, and if said first marriage was a legal and subsisting marriage at the time of the second marriage, then it necessarily follows that the second marriage was illegal, void, and of no effect. The plaintiff in error contends that the marriage between her and Cammack Broke-shoulder was never dissolved and was a legal and subsisting marriage at the time Cammack Brokeshoulder consummated his marriage with Ruby Brokeshoulder. The defendant in error contends that the marriage between Cammack Brokeshoulder and Josephine Brokeshoulder was not a legal and subsisting marriage at the time of the second marriage, and that the second marriage was a legal marriage.
It necessarily follows that if the contention of the plaintiff in error is correct, then the judgment of the county and district courts of Johnston county, Okla., was erroneous and incorrect; if the contention of Ruby Brokeshoulder . is correct, then said judgment is a valid judgment. If the judgment of the district court is sustained in this appeal, .then Ruby Brokeshouler is an heir of Cammack Brokeshoulder .as his surviving widow and entitled to an undivided one-fourth (%) interest in his estate. If Josephine Brokeshoulder. ne’e Silistan, was the legal wife of Cammack Brokeshoulder at the time of his death in
Johnston county, Okla., then, in that event, said Josephine Brokeshoulder is an heir of Cammack Brokeshoulder, and under the admitted facts in this case she would be entitled to an undivided one-third (%) interest in said estate.
At a hearing of this cause the evidence of divers and sundry witnesses was taken upon the issues involved. Most of the evidence was taken by deposition and was read to the trial court. The plaintiff in error and defendant in error were both present at the trial and testified therein. At the close of the evidence offered and introduced by the various witnesses the trial court made the following finding of fact and conclusion of law:
“Finding of Fact.
“That Cammack Brokeshoulder, Sr., deceased, was a Mississippi Choctaw Indian by blood and duly enrolled as such by the Commission to the Five Civilized Tribes; that he died intestate in Johnston county, state of Oklahoma, on the 8th day of March, 1920, and that at the time of his death Johnston county, Oklahoma, was his permanent home and place" of residence and that the county court of Johnston county, Oklahoma, has and had jurisdiction of the settlement and administration of the estate of said Cammack Brokeshoulder, deceased.
“2. That said Cammack Brokeshoulder, Sr., and Josephine Brokeshoulder, nee Silis-tan, were legally married in the state of Mississippi in the year 1908 and of this marriage there was one child born, viz., Mabel Ellis Brokeshoulder, a minor,, and •said child is a legitimate child and an lieir of said Cammack Brokeshoulder, deceased.
“3. That Cammack Brokeshoulder left the state of Mississippi about the year 1912, returning to Carter county, Oklahoma, where he and Ruby Brokeshoulder. née Cathey, were legally married according to the laws of the state of Oklahoma, and of said marriage the following children were born and are now living, viz.: Corrine Brokeshoulder, a minor. and Cammack Brokeshoulder. Jr., a minor.
“4. That in the year 1914 Josephine Brokeshoulder, nee Silistan, filed -'n the chancery court of Neshoba county. Mississippi, a petition for divorce from Cammack Brokeshoulder and that thereafter in the year 1915. in the same county at the same town, the county clerk issued a marriage license authorizing the solemnization of the rights of matrimony, uniting in marriage Edgar Tubby and said Josephine Brokeshoulder and that said persons were married in said county and thereafter lived in said county as husband and wife; that said Cammack Brokeshoulder. Sr„ and Josephine Brokeshoulder, nee Silistan, were divorced prior to the marriage of Cammack Brokeshoulder and Ruby Brokeshoulder, nee Cathey, and that the children of the marriage of Cammack Brokeshoulder are the'legitimate children and the heirs of said Cammack Brokeshoulder deceased.”
“Conclusions of Law'.
“1. That the marital relation existing between Cammack Brokeshoulder and Josephine Brokeshoulder was dissolved by divorce prior to the marriage of Ruby Brokeshoulder and Cammack Brokeshoulder.
■‘2. That the marriage of Cammack Brokeshoulder and Ruby Brokeshoulder was legal.
“3. That Ruby Brokeshoulder is the legal wife and the surviving wife and widow' of Cammack Brokeshoulder, deceased, and as such entitled to share in his estate.
“4. That Josephine Brokeshoulder, nee Silistan, was divorced from the said Cami mack Brokeshoulder and was not the surviving -widow of Cammack Brokeshoulder at jthe time of his death and is not entitled to share in his estate and that she is not an heir of said Cammack Brokeshoulder, deceased.
“5. That the child of Cammack Broke-shoulder and Josephine Brokeshoulder, to-wit, Mabel Ellis Brokeshoulder, a minor, is the child and legal heir of Cammack Brokeshoulder, deceased, and as such entitled to share in his estate.
“6. That the children of Cammack Brokeshoulder and Ruby Brokeshoulder, to-wit, Corrire Brokeshoulder, a minor, and Cammack Brokeshoulder, Jr., a minor, are the children and legal heirs of Cammack Brokeshoulder, deceased, and as such entitled to share in his estate.”
“To the court’s findings of fact and conclusions of law that Josephine Broke-shoulder was not the wife of Cammack Brokeshoulder, deceased, at the time of his death and was not an heir and entitled to participate in the distribution of the estate of the said Cammack Brokeshoulder. deceased, the defendant Josephine Broke-shoulder, excepts.”
Before taking up a discussion of the facts in this case, as shown by the record, we will first lay down the rules of law defining the presumptions and burdens of proof that are applicable to the issue herein. Two fundamental facts are admitted in this case. The marriage of Cammack Brokeshoulder and Josephine Brokeshoulder, nee Silistan, on September 29, 1908, in Kemper county, Miss., is not denied. The marriage of Cammack Brokeshoulder to the defendant in error Ruby Brokeshoulder on the 18th day of July, 1914, in Carter County, Okla., is 'not denied. It is agreed
by the parties to the suit that the rules as to the presumptions and burdens of proof, as enunciated in the following cases, are the correct rules: Locust v. Caruthers, 23 Okla. 373, 100 Pac. 520; Coachman v. Sims, 36 Okla. 536, 129 Pac. 845; Hale v. Hale, 40 Okla. 101, 135 Pac. 1143; Chancey v. Whinnery, 47 Okla. 272. 147 Pac. 1036; James v. Adams, 56 Okla. 450, 155 Pac. 1121; Lewis v. Lewis, 60 Okla. 60, 158 Pac. 368; Crickett v. Harden, 60 Okla. 57, 159 Pac. 275; Jones v. Jones, 63 Okla. 208, 164 Pac. 463; In re Sanders’ Estate, 67 Oklahoma, 168 Pac. 197; Coleman v. James, 67 Oklahoma, 169 Pac. 1064; Thomas v. James, 69 Oklahoma, 171 Pac. 857; Linsey v. Jefferson, 68 Oklahoma, 172 Pac. 641; Johnson v. Dunlap, 68 Oklahoma, 173 Pac. 359; Copeland v. Copeland, 73 Oklahoma, 175 Pac. 764; Clarkson v. Washington, 38 Okla. 4, 131 Pac. 935; Zimmerman v. Jones, 59 Okla. 253, 159 Pac. 305; Meagher v. Harjo, 72 Oklahoma, 179 Pac. 757; Hughes v. Kano, 68 Oklahoma, 173 Pac. 447; Carney v. Chapman, 247 U. S. 102, 38 Sup. Ct. 449.
The rule as deduced from these cases by this court is that where an actual marriage has been solemnized according to the methods prescribed by law, every inference is to be invoked in support of the validity of said marriage and against- the validity or existence of any .antecedent marriage. In other words, the legal presumption arises that validates and a legal presumption persists in favor of the validity of the last marriage. This rule is admitted to be the rule that is applicable to the situation in this case by both the plaintiff in error and defendant in error. The plaintiff in error in this ease assumed the burden of showing that the marriage of the defendant In error, Ruby Brokeshoulder, to Oammack Brokeshoulder, deceased, was invalid. The presumption of the legality of the Carter county marriage is not a conclusive presumption and may be overcome by competent evidence, and when this is done, the burden is shifted to the one contending that the second marriage is valid. This rule is laid down in the case of Copeland v. Copeland, heretofore cited:
“Where a marriage has been consummated in accordance with the form of the law. the law indulges a strong presumption in favor of its validity. One who asserts the invalidity of such a marriage, because one of the parties thereto has been formerly married and: the spouse of such former -marriage is still living, has upon him the burden of proving -that the first marriage has not been dissolved by divorce or lawful separation.”
In the body of the opinion of Copeland v. Copeland, it will be noted that a rule was laid down by Mr. Freeman in his notes to the ease of Pittinger v. Pittinger (Colo.) 89 Am. St. Rep. 200, as follows:
“If it is conceded that a person attacking a marriage, on the ground that a former spouse of one of the parties is living, must show that the first marriage has not been dissolved, still he is not required to make plenary proof of such negative averment. It is enough that he introduces such evidence as, in the absence of all counter evidence, affords reasonable grounds for presuming the allegation true. When this is done the onus probandi is thrown on his adversary.”
In Elizabeth Schmisseur et al. v. August Beatrie et al., 147 Ill. 210, is announced the following rule (syllabus, par. 7):
“Although the burden was upon the complainants of proving negative contention that a divorce had not been obtained before the last marriage, yet it is well settled that a party is not required to make plenary proof of a negative averment. It is enough that he introduces such evidence as. in the absence of all counter testimony, will afford reasonable grounds for presuming that the allegation is true, and when this is done, the onus probandi will be thrown on his adversary.”
To the same effect is the case of Turner v. Williams, 202 Mass. 500, 89 N. E. 110, 24 L. R. A. (N. S.) 1199, 132 Am. St. Rep. 511. See. also, Williams v. Williams, 63 Wis. 58, 23 N. W. 110, 53 Am. Rep. 253; Barnes v. Barnes et al. (Iowa) 57 N. W. 851.
The question of whether there was or there was not a divorce dissolving the marriage of Josephine Brokeshoulder and Cam-mack Brokeshoulder is material, as bearing upon the question of the validity of the marriage of Ruby Brokeshoulder and Cammack Brokeshoulder, deceased. This law, as- defined in the authorities heretofore cited and quoted, is an expression of the various presumptions that exist for and against the validity of these marriages, and also discusses and lays down the rules relative to the burden of proof and shifting of the same. While the courts state that the inclination of the courts is to jealously guard the validity of a marriage. and state that there is a strong presumption in favor’ of its legality, yet they nowhere hold that these presumptions are conclusive, but hold that they are rebut-table presumptions and are Subject at all times to be overcome by either negative or positive proof, or both. We have cited and quoted the authorities laying down these roles or presumptions and burdens-;
we, however, are going to quote the fourth paragraph of the syllabus in the case of Chancey v. Whinnery, heretofore cited, which is as follows:
“The law is so positive in requiring a party who asserts tbe illegality of a marriage to take the burden of proving it that such requirement is enforced, even though it involve tbe proving of a negative.”
Our interpretation, of this fourth paragraph of- the syllabus is that the proof or admission of a prior legal marriage is not within itself sufficient to rebut the presumption of the validity of the second marriage, and that while the burden is upon the one attacking the validity of the second marriage, it is not necessary for him to prove absolutely and to a moral certainty that the first marriage has not been dissolved, but the burden is met if he introduces sufficient evidence to negative the fact that tbe first marriage has been dissolved.
We have reviewed tbe authorities cited by the defendant in error in her brief, and we do not find tbe bolding of those cases to be in conflict with the holdings in the instant ease, nor with the rule announced in Copeland v. Copeland, 73 Oklahoma, 175 Pac. 764, and they are merely a reiteration of the rule of presumptions in favor of the validity of marriages. It has been suggested that possibly the rule of this court has been to announce a liberal rule of interpretation of the marriage relation between In'dians, but that rule of liberality, if one has been announced, is only applicable when considering the marriages as consummated according to the laws and customs of tbe tribes, and where the Indians enter into the marriage relation under the taws of the state, they are bound by the same rules as are other citizens, as laid down in the fifth syllabus paragraph of the case of Chancey v. Whinnery, which is as follows:
“The rule announced in the second preceding paragraph is not affected by the fact that the parties to the respective marriages are Indians, and that the marriages under review were entered into according to the customs and usages of the tribal authorities.”
The evidence in this record shows that Cammack Brokeshoulder had been a resident of Kemper county, Miss.; that he had' also during his lifetime resided in Carter county, Okla., and Johnston county, Okla., and those were the only three counties in any state where he had ever established any permanent residence. The evidence, as shown by the ‘ record, shows that Josephine Broke-shoulder, nee Silistan, had during her lifetime and up to the time of this trial only resided and had her permanent residence in Kemper county, Miss., but had resided a short time in Neshoba county, but not for sufficient length of time to -establish a permanent residence, and had resided in no other state or county, but that she had been temporarily employed in New Orleans and in one other place in the state of Louisiana.
The plaintiff in error assumed the burden and introduced proof bearing upon the question as to whether the original marriage between Josephine Brokeshoulder, nee Silistan, and Cammack Brokeshoulder had ever been dissolved by divorce, -and in pursuance of this burden she took the deposition of the chancery court clerk of Kemper county, state of Mississippi, who testified in substance that no decree of divorce or application therefor had ever been filed in Kemper county, Miss., to set aside tbe original marriage between Josephine Brokeshoulder and Cammack Brokeshoulder.
At the request of the defendant in error’s attorney tbe deposition of the chancery court clerk of Neshoba county, Miss., was also taken, and in answer to questions by the attorney for defendant in error, Kuby Brokeshoulder, the clerk produced an application or petition for divorce as having been filed in tbe chancery court of Neshoba county entitled Josephine Brokeshoulder v. Cammack Brokeshoulder, and the file date was August 22, 1914. The said chancery clerk, in answer to questions in cross-examination by the attorney for Josephine Broke-shoulder, stated in substance that he had examined the records and files of the chancery court of Neshoba county, Miss., and that said records failed to show anything pertaining to said divorce except the petition, or that a trial was ever had, and there was no, record of any decree of said court showing that a decree had ever been entered dissolving tbe marriage relation of Cammack Brokeshoulder and Josephine Brokeshoulder in Neshoba county, Miss. The clerk further stated that be had no personal knowledge of any decree or other proceeding -ever having been taken upon said petition, and that in his judgment nothing had ever been done and the case had been abandoned.
In the trial of the cause in the county court, Josephine Brokeshoulder went upon the stand and testified pertaining to said divorce matter as between her and Cammaek Brokesbould-er in this wise: That she had. never procured a divorce from Cammack: Brokeshoulder. She stated that she did not
'know anything about a divorce. Then she •was asked if she had not on the 13th day of .November, 1915, married one Edgar Tubby, dn Kemper county, Miss., and she admitted that she had. Then she was asked if she Thad not procured a divorce, why she married Edgar Tubby, and her answer was .that •Cammack Brokeshoulder had left and she ■ did not expect him to return, and that she "was informed he was divorced. This evi•dence was taken of Josephine Brokeshoulder .in the county court; was taken down in shorthand and by agreement was used in -the trial in the district court.
The attorney for the defendant in error ■in his brief discusses what he calls the con-tradictory evidence of the plaintiff in-error, Josephine Brokeshoulder, given in the county • court. She denied in the first part of her evidence that she had any knowledge of petition having been filed, or that she had .signed one; denied consulting a lawyer or ■that she knew lawyer Ware. On redirect • examination she testified about talking with • some lawyer about the divorce, but that he told her that she. did not have any grounds ■for a divorce. The lawyer whom it was asked if she had consulted was a lawyer with a different name than that of the one on the petition. The evidence of the clerk -of the court where the petition was filed, wherein he testified that the only evidence -on the record of the court of the divorce ■proceeding was of the filed petition, while negative in its character, tends to corroborate Josephine Brokeshoulder’s positive -statement that no divorce was procured. It is further contended by the attorney for the defendant in error in his brief that the failure of the plaintiff in error to procure the evidence of the lawyer relative to this • divorce proceeding should be considered against the plaintiff in error, but we do not ■ think that the failure ■to take this evidence raises a presumption •against one more than the other party to ■this litigation. W.e have no knowledge of what the attorney would testify to relative to the divorce proceeding, and the right to ■take the evidence of these attorneys was as much the privilege of one as the other of these parties litigant.
The plaintiff in error, in discharging the burden of showing the illegality of the marriage between Cammack Brokeshoulder and Ruby Brokeshoulder, called the court clerks ■of Carter and Johnston counties as wit - nesses in the trial of the cause in the county court, and they testified from their records ■that no divorce dissolving the marriage be-tween Cammack Brokeshoulder and Josephine Brokeshoulder had ever been entered or decreed by the district courts of those two counties. The evidence of the court clerks was taken by shorthand in the county court and by agreement was used in the trial of the cause in the district court.
It is not denied, and is admitted, at least jby implication, by the defendant in error that Cammack Brokeshoulder never .established a permanent residence in any other counties or state except Kemper county, Miss., and Carter and Johnston counties, state of Oklahoma. There was some con--tention in the trial in the county court that Cammack Brokeshoulder had resided for a short time in Pittsburg county, Okla., but it was admitted in the record in the trial of the cause by the attorney for the defendant in error in the district court that no decree of divorce had ever been procured by Cam-mack Brokeshoulder in Pittsburg county, Okla. The record in this case discloses that the defendant in error made no contention that Cammack Brokeshoulder had ever procured a divorce dissolving the marriage between him and Josephine Brokeshoulder, and where, and the only contention of the defendant in error that the marriage between Cammack Brokeshoulder and Josephine Brokeshoulder was dissolved was based upon the presumption arising from the validity of the second marriage and upon one item of proof — fhe introduction and proof of the filing of the petition for divorce in Neshoba county, Miss., on the 22nd day of August, 1914. It is upon this proof and the presumption heretofore stated that the defendant in error relies to sustain the validity of the marriage of Cammack Broke-shoulder and Ruby Brokeshoulder, and ne other, as against the proof of the plaintiff in error.
The best evidence of a decree of divorce is the record of the written decree of the court that granted the order. While there are courts that hold that where there is no decree of record in the trial court the proof of the absence of such dgcree has the effect of making any alleged divorce a nullity. See Medlin v. Platt County, 8 Mo. 117. 33 Mo. 168. In this case it was proven by the plaintiff in error that there was no decree of record ever entered in Neshoba county as a result of filing the petition; that there was noth ing in the files of said court showing that said decree had ever been procured. There are no recitals on the record showing. a decree, and even if there were any presumptions arising that a decree had ever ■ been granted by reason of the proof
of the filing of the petition, this evidence drawn out by the plaintiff in error in cross-examination !is sufficient to rebuit any presumptions that might arise from the filing of said petition.
The Supreme Court of this state in the case of Ex parte Stevenson, 20 Okla. 549-551, 94 Pac. 1071, speaking through Mr. Justice Kane, stated the rute as follows:
“The record entry of a judgment is indispensable to . prove the evidence of it when it is made the basis of a claim or defense in another court. * * *
“The necessity of entering judgments and the importance thereof is well stated in 1 Ereeman on Judgments, 37:
“ ‘The promptings of the most ordinary prudence suggest that whatever in the affairs of men has been so involved in doubt and controversy as to require judicial investigation ought, when made certain by a final determination, to be preserved so by some permanent and easily understood memorial. Hence all courts and all tribunals possessing judicial functions are required by the written or unwritten law, and often by both, to reduce their decisions to writing in some book or record kept for that purpose. The requirement is believed to be of universal application.’
“Judge Freeman in the same section, discussing the effect of nonentry, says:
“ ‘While the entry is not the judgment, its absence tends strongly to indicate that no judgment exists.’ ”
It appears from this record, furthermore, that, as heretofore stated, the defendant in error undertook to prove the existence of a divorce in Neshoba county, Miss., and her proof consists of the fact that a petition had been filed in the chancery court of Neshoba county, Miss., on the 22nd day of August, 1914. This record discloses the fact, and it is admitted by the defendant in error in her brief, that Oammack Broke-shoulder procured a license in Ardmore, Garter county, Okla., on the 18th day of July, 1914, authorizing him to enter into the marriage relation with one Ruby Cathey, and that on the same date the record shows that Oammack Broke-shoulder and Ruby Oathey were married. In other words, 35 days prior to the time of the filing of the petition for a purported divorce in Neshoba county, Oammack Broke-shoulder entered into a marriage with Ruby Cathey, now Brokeshoulder, thereby admitting that Oammack Brokeshoulder had entered into a marriage relation with another woman 35 days before a purported proceeding had commenced and upon which proceeding the defendant in error had assumed to rely, in this cause, as a proceeding that would validate the marriage between her and Oammack Brokeshoulder.
We have examined the record of this case, and after reviewing the evidence we find that the presumptions arising by law have been overcome by proofs of the plaintiff in error, and that the burdens arising under the issues in this case assumed by the plaintiff in error have been fully and amply satisfied. Therefore, it necessarily follows that the judgment of the trial court in finding that the marriage between Cam-mack Brokeshoulder and Ruby Broke-shoulder was a valid and subsisting marriage, and that the marriage theretofore existing between Oammack Brokeshoulder and Josephine Brokeshoulder had been dissolved, was erroneous and against the clear weight of the evidence.
It has been suggested that by holding the marriage between Ruby Brokeshoulder the defendant in error , and Oammack Brokeshoulder void and of no effect the legal result of such holding will be to illegitimize the two children of this marriage, which is not the fact. By section 8420, Revised Laws 1910, it is provided as follows:
“Every illegitimate child is an heir of the person who in writing signed in the presence of a competent witness acknowledge® /himself to be the fa/ther of such child; and in all cases is an heir of his mother; and inherits his or her estate. In whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but h.e does not represent his father or another by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless before his death his parents shall have intermarried, and his father after such marriage, acknowledges him as his child, or adopts him into his family; in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them, intestate, and without issue, the others inherit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate ; saving to the father and mother respectively, their right in the estate of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate.”
See, in this connection, Copeland v, Copeland, 73 Oklahoma, 175 Pac. 764.
Under the provisions of the above statute these children are held to be legitimate and so declared, and are the heirs of their father, Oammack Brokeshoulder.
Under the conclusions that we have reached In this case, Josephine Broke-shoulder being held herein to be the lawful wife of Cammack Brokeshoulder, at the time of his death, under section 8418, Rev. Laws 1910, there being but one child born to the legal marriage between Josephine Brokeshoulder and Cammack Broke-shoulder, she being the first wife ana the only legal wife of the deceased man, and two children also being born unaer the second marriage which were made legitimate by the statute, then under the facts in this ease under the following portions of said cited section of our law, Josephine Brokeshoulder takes one-third (%) undivided interest in the estate of her deceased husband, Cammack Brokeshoulder, and the residue of said estate goes in equal parts to the three children. The portion of said section relied upon reads as follows:
“If the decedent leave a surviving husband or wife, and more than one child living, or one child living and the lawful issue of one or more deceased children, one-third to the surviving husband or wife, and the remainder in equal shares to his children, and to the lawful issue of any deceased child by right of representation; but if there be no child of the decedent living at his death, the remainder goes to all of his lineal' descendants; and 'if all the descendants are in the same degree of kindred to the decedent they share equally, otherwise they take according to the right of representation.”
This cause is reversed and remanded, with directions to the district court to enter a decree not inconsistent with the holdings herein expressed.
HARRISON, C. J., and JOHNSON, MILLER, and NICHOLSON, JJ., concur.