Gill. C. J.
The appellants make two assignments of error: “First, the court erred'in holding that the wife and minor children of the deceased, Edward Duford, could not maintain this action in their own name, and that the same should have been brought by the administrator; second, the court erred in holding that the plaintiffs did not disclose sufficient interest in said property to entitle them to recover the same from the appel[341]*341lee.” It will be noticed by the judgment of the court that the demurrer was sustained for two reasons: First, because, “the plaintiffs’ complaint fails -to show that they have any interest in the land and premises sued upon”; and second, “if they do have any interest, this suit should have been brought by an administrator of Duford, deceased, and not by the distributees of his estate.” An examination of the complaint shows that the plaintiff Mollie Engleman sues in her own behalf and as natural guardian and the next friend for and in behalf of the other plaintiffs, who are minor children of herself and her husband, Edward Duford, deceased. It alleges that they are members of the Chickasaw tribe of Indians, and the defendant is not a member of any Indian tribe. It alleges 'that the plaintiffs are the rightful owners and entitled to the possession of the premises sued for. It alleges that the defendant, Cable, entered into a lease and improvement contract with the deceased, the husband and father of plaintiffs, who was then the owner of the land, and sets out certain conditions of said lease. It alleges that said lease contract has expired by virtue of its own terms, as well as by virtue of the terms of what is known as the “Curtis Law”; that said Edward Duford departed this life intestate about April 1897, at which time he was a citizen and resident of the Chickasaw Nation, and was still seised and possessed of the land and of his rights under his said rental or lease contract; that said Duford left surviving him, as his sole and only heirs at law, the plaintiff, Mrs. Mollie Engleman, nee Duford, his widow, and the minor plaintiffs, the children of himself and his said wife; that in 1898 the plaintiff Mrs. Engleman intermarried with her present husband, J. F. Engleman. And plaintiffs say there has never been any administration on the estate of Duford, and never was any necessity for such administration; that the decendent owed no debts; that by the law in force in the Chickasaw Nation.the said property sued for, and all rights under said rental contract, passed and descended to plaintiffs, and that by virtue of said [342]*342law they became the legal owners and entitled to the possession of said property; that said property is not now, and was not at the death of said Duford, subject to the payment of the debts of his estate, and would not pass to and be assets in the hands of an administrator had one been appointed; that said defendant, Cable, still unlawfully and wronglully holds and retains possession of said property, and refuses to surrender possession of the same to plaintiffs, after due and legal notice; and alleges the value of the use and occupation of said premises, and demands possession, and for their damages. Certainly this complaint alleges the relation of landlord and tenant between the deceased, Duford, and the defendant, and the accountability of the defendant, as the lessee of said Duford, for said premises. It alleges the expiration of the term. The defendant is bound to account in some way for his holding, and to return to the possession of the party entitled thereto the lands demised to him; and the question for consideration- by the court — and the sole question —is whether or not it is necessary on the part of the defendant to return these' lands to the legal heirs of the deceased, Duford, ■or to his administrator. The plaintiffs in a very vague manner endeavor to plead an act of the Chickasaw legislature as the foundation of their right to bring this suit. The complaint merely refers to the Chickasaw law as an “act of the Chickasaw legislature, approved October 12,1876.” We do not think that this is a sufficient allegation of what such law is. The law itself, as relied upon, should be set out in the complaint, or attached thereto as an exhibit in the pleading, and not the effect of the law as attempted herein. By this general allegation the court is bound in some way to secure for its examination the laws of the Chickasaw Nation, and we have held heretofore that these laws must be specially pleaded where parties seek to avail themselves of them. Hockett vs Alston 3 Ind. Ter. Rep. 432 (58 S. W. 675); Id., 49 C. C. A. 182, 110 Fed. 910; Wilson vs Owens 1 Ind. Ter. Rep. 163, (38 S. W. 976;) Id., 30 C. C. A. 257, 259, 86 Fed. [343]*343571; Sass vs Thomas, rendered at this term; (69 S. W. 893). A case involving somewhat the same principle as involved herein was decided by the circuit court of appeals, Eighth circuit, in the case of Davison vs Gibson, 5 C. C. A. 543, 56 Fed. 443. The question there was whether or not a husband took'his deceased wife’s property under the common law, or whether or not the Creek ,law in reference to the descent of the separate property of the wife applied, or, in the absence of proof as to the Creek law, if the law as found in the chapters of Mansfield’s Digest, put in force in the Indian Territory by act of congress approved May 2, 1890, (Mansf. Dig. c. 49; Ind. Ter. St. 1899, c. 21), should not apply. And it was there intimated that, in ‘the absence of proof of the Creek law, “it would undoubtedly be more rational to presume that the law of custom of the nation on this subject was in harmony with the statute adopted by congress, and that the act of congress was merely declaratory of previously existing law.” If we adopt this construction, and apply it to the case here, under the condition of the pleadings, we are compelled to hold that in the absence of the pleading of what the Chickasaw lavr was in relation to descents and distributions of property, the property descended under chapter 49, §2522, 2545, Mansf. Dig. (§§1820, 1843, Ind. Ter. St. 1899); this statute having been put in force by act of congress of May 2, 1890, 26 Stat. p. 81, c. 182, § 31. And this provision is as follows: “When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow’s dower, in the following manner: First. To children, or their descendants, in equal parts. Second. If there be no children, then to the father, then to the mother; if no mother,then to the brothers and sisters, or their descendants, in equal parts. Third. If there be no children, nor their descendants, father, mother, brothers or [344]*344sisters, nor their descendants, then to the grandfather, grandmother, uncles and aunts and their descendants, in equal parts, and so on in other cases, without end, passing to the nearest lineal ancestor, and their children and their descendants, in equal parts.” It will be noticed from 'this section that the land and real estate subject to the payment of the debts and the widows’ dower of any intestate descends to the child or children or their descendants in equal parts. Now, is it necesssary that there be an administration of an estate simply for the purpose of the distribution of said estate? The complaint in this case charges that there were no debts, and no necessity for an administrator for the purpose of preserving the estate from waste. To determine this question we must look to the chapter on administration. Mansf. Dig. § 1 et seq.
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Gill. C. J.
The appellants make two assignments of error: “First, the court erred'in holding that the wife and minor children of the deceased, Edward Duford, could not maintain this action in their own name, and that the same should have been brought by the administrator; second, the court erred in holding that the plaintiffs did not disclose sufficient interest in said property to entitle them to recover the same from the appel[341]*341lee.” It will be noticed by the judgment of the court that the demurrer was sustained for two reasons: First, because, “the plaintiffs’ complaint fails -to show that they have any interest in the land and premises sued upon”; and second, “if they do have any interest, this suit should have been brought by an administrator of Duford, deceased, and not by the distributees of his estate.” An examination of the complaint shows that the plaintiff Mollie Engleman sues in her own behalf and as natural guardian and the next friend for and in behalf of the other plaintiffs, who are minor children of herself and her husband, Edward Duford, deceased. It alleges that they are members of the Chickasaw tribe of Indians, and the defendant is not a member of any Indian tribe. It alleges 'that the plaintiffs are the rightful owners and entitled to the possession of the premises sued for. It alleges that the defendant, Cable, entered into a lease and improvement contract with the deceased, the husband and father of plaintiffs, who was then the owner of the land, and sets out certain conditions of said lease. It alleges that said lease contract has expired by virtue of its own terms, as well as by virtue of the terms of what is known as the “Curtis Law”; that said Edward Duford departed this life intestate about April 1897, at which time he was a citizen and resident of the Chickasaw Nation, and was still seised and possessed of the land and of his rights under his said rental or lease contract; that said Duford left surviving him, as his sole and only heirs at law, the plaintiff, Mrs. Mollie Engleman, nee Duford, his widow, and the minor plaintiffs, the children of himself and his said wife; that in 1898 the plaintiff Mrs. Engleman intermarried with her present husband, J. F. Engleman. And plaintiffs say there has never been any administration on the estate of Duford, and never was any necessity for such administration; that the decendent owed no debts; that by the law in force in the Chickasaw Nation.the said property sued for, and all rights under said rental contract, passed and descended to plaintiffs, and that by virtue of said [342]*342law they became the legal owners and entitled to the possession of said property; that said property is not now, and was not at the death of said Duford, subject to the payment of the debts of his estate, and would not pass to and be assets in the hands of an administrator had one been appointed; that said defendant, Cable, still unlawfully and wronglully holds and retains possession of said property, and refuses to surrender possession of the same to plaintiffs, after due and legal notice; and alleges the value of the use and occupation of said premises, and demands possession, and for their damages. Certainly this complaint alleges the relation of landlord and tenant between the deceased, Duford, and the defendant, and the accountability of the defendant, as the lessee of said Duford, for said premises. It alleges the expiration of the term. The defendant is bound to account in some way for his holding, and to return to the possession of the party entitled thereto the lands demised to him; and the question for consideration- by the court — and the sole question —is whether or not it is necessary on the part of the defendant to return these' lands to the legal heirs of the deceased, Duford, ■or to his administrator. The plaintiffs in a very vague manner endeavor to plead an act of the Chickasaw legislature as the foundation of their right to bring this suit. The complaint merely refers to the Chickasaw law as an “act of the Chickasaw legislature, approved October 12,1876.” We do not think that this is a sufficient allegation of what such law is. The law itself, as relied upon, should be set out in the complaint, or attached thereto as an exhibit in the pleading, and not the effect of the law as attempted herein. By this general allegation the court is bound in some way to secure for its examination the laws of the Chickasaw Nation, and we have held heretofore that these laws must be specially pleaded where parties seek to avail themselves of them. Hockett vs Alston 3 Ind. Ter. Rep. 432 (58 S. W. 675); Id., 49 C. C. A. 182, 110 Fed. 910; Wilson vs Owens 1 Ind. Ter. Rep. 163, (38 S. W. 976;) Id., 30 C. C. A. 257, 259, 86 Fed. [343]*343571; Sass vs Thomas, rendered at this term; (69 S. W. 893). A case involving somewhat the same principle as involved herein was decided by the circuit court of appeals, Eighth circuit, in the case of Davison vs Gibson, 5 C. C. A. 543, 56 Fed. 443. The question there was whether or not a husband took'his deceased wife’s property under the common law, or whether or not the Creek ,law in reference to the descent of the separate property of the wife applied, or, in the absence of proof as to the Creek law, if the law as found in the chapters of Mansfield’s Digest, put in force in the Indian Territory by act of congress approved May 2, 1890, (Mansf. Dig. c. 49; Ind. Ter. St. 1899, c. 21), should not apply. And it was there intimated that, in ‘the absence of proof of the Creek law, “it would undoubtedly be more rational to presume that the law of custom of the nation on this subject was in harmony with the statute adopted by congress, and that the act of congress was merely declaratory of previously existing law.” If we adopt this construction, and apply it to the case here, under the condition of the pleadings, we are compelled to hold that in the absence of the pleading of what the Chickasaw lavr was in relation to descents and distributions of property, the property descended under chapter 49, §2522, 2545, Mansf. Dig. (§§1820, 1843, Ind. Ter. St. 1899); this statute having been put in force by act of congress of May 2, 1890, 26 Stat. p. 81, c. 182, § 31. And this provision is as follows: “When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow’s dower, in the following manner: First. To children, or their descendants, in equal parts. Second. If there be no children, then to the father, then to the mother; if no mother,then to the brothers and sisters, or their descendants, in equal parts. Third. If there be no children, nor their descendants, father, mother, brothers or [344]*344sisters, nor their descendants, then to the grandfather, grandmother, uncles and aunts and their descendants, in equal parts, and so on in other cases, without end, passing to the nearest lineal ancestor, and their children and their descendants, in equal parts.” It will be noticed from 'this section that the land and real estate subject to the payment of the debts and the widows’ dower of any intestate descends to the child or children or their descendants in equal parts. Now, is it necesssary that there be an administration of an estate simply for the purpose of the distribution of said estate? The complaint in this case charges that there were no debts, and no necessity for an administrator for the purpose of preserving the estate from waste. To determine this question we must look to the chapter on administration. Mansf. Dig. § 1 et seq. (Ind. Ter. St. 1899, § 58 et seq.) Section 1 provides: “It shall be the duty of the courts of probate, in term time, or the clerks of court thereof in vacation, subject to the confirmation or rejection of the court, to grant letters testamentary and of administration.” Section 5 of said statute provides: “It shall not be the duty of the clerk or court to issue letters of administration on the estate of any deceased person, unless it shall, in the opinion of said clerk or court, be necessary to preserve such estate from waste or damage or to protect the rights of creditors.” It seems from these two sections, and from sections which follow, that it is necessary that the question of whether or not an estate ought so be administered upon is to be adjudicated by the court, or, during vacation, by the clerk, subject to the further review of.the court. Such adjudication is determined by the presentation to the clerk and filing in the court of a petition setting out the facts, and the issue of letters of administration. If there be no occasion to preserve said estate from waste, or if there be no debts against said estate, the administration seems to be wholly unnecessary, and we are bound by the terms of the statute in that regard. Now, as heretofore held the tenant was bound to account to his landlord, or to his land[345]*345lord's heirs, or the administrator, for his tenancy of the premises in controversy and the improvements thereon, and to pay to the person or persons entitled thereto such reasonable compensation as was their due under the law and contract. The demurrer in this ease, if we are to hold that Mansfield's Digest governs the parties, was improperly sustained, and such action by the court was error, and the case will have to be reversed and remanded for further trial.
But we are convinced that the court below acted upon the presumption that the Chickasaw law was before it, and the case was probably argued to the court from the standpoint of the Chickasaw law, and on that law, had it been properly brought to the attention of this court, this case should be affirmed. We find, on examination of the Chickasaw law (chapter on administration), that it becomes absolutely necessary that an estate be administered upon for the purpose of distribution, and undoubtedly the court had this act under consideration in pronouncing judgment upon this demurrer. At the time pi the death of the deceased, Duford, namely, in 1897, section 1 of the act of the Chickasaw Nation in relation to administrators, approved October 19, 1876, provided. “That the judge of the county and probate courts in and for the several counties of the Chickasaw Nation, be, and they are hereby, empowered and required to appoint administrators, administratrixes in their respective counties on the estates of all persons subject to the laws of said nation dying intestate without having made a will within said counties, or where usual domicile was at the time of the death of such persons within the same. * * * And he or she will, as soon as possible, equally divide the estate of such intestate among the lawful heirs of said deceased person.” With this law before it, the court could not do otherwise than sustain the demurrer to this complaint; but this law of the Chickasaw Nation is nowhere brought to the attention of this court, either in the [346]*346pleadings which were before the trial court, or by reference in the attorney’s briefs and arguments; and while it must certainly have been in the mind of the court'below, neither that court nor this court have any means of knowing it without a special investigation into the condition of the law of that nation, and are bound, in that event, as heretofore suggested, to hold that the law as laid down in Mansfield’s Digest must govern the decision in this case; and in view of that law we are compelled to hold that, where there are no debts, and where there is no necessity for-an administrator to preserve the property of the intestate from waste or loss, and where there is no administration, as in this case, and where such facts are alleged by the complaint, the widow and heirs of the intestate are proper parties to maintain an action of forcible entry and detainer as against the lessee of the intestate, and to recover possession of the intestate’s leased property.
The demurrer in this case should have been overruled, and the cause proceeded regularly, and the case is therefore reversed and remanded.