KANE, J.
This was a controversy, involving the devolution of the allotment of Nicholas Bean, enrolled as a quarter-blood Chickasaw Indian, who died in infancy after receiving his allotment, leaving surviving him his father, Pelin Bean, who was enrolled as a half-blood Chickasaw1 Indian, and a sister, Lillian Bean; his mother, Abby Bean, nee Jackson, enrolled as a half-blood Choctaw Indian, having previously died. Subsequent to the death of Nicholas Bean, Lillian Bean, his sister, also died in infancy, leaving no descendants. The defendants «laim title through conveyancfes by Pelin Bean, the father, and his grantee, executed subsequent to the death of Lillian Bean. The plaintiff in error, Ben Pinley, as plaintiff'below, commenced this action to cancel these conveyances. Ben Pinley, the plaintiff, is a full-blood Choctaw, was the uncle of Ábby pean, and the great-uncle of Nicholas Bean and Lillian Bean. It was his contention that at the death of Nicholas Bean, one-half of his allotment ascended to ,his father, Pelin Bean, and the other half went to his sister, Lillian Bean, and that at the death of Lillian Bean without descendants half of the allotment which came to her ascended through the Choctaw blood of the mother and vested in Ben Pinley, he being the only surviving kinsman of Abby Bean. Yock Jackson and Sylvia Jackson, by order of court, filed an interplea, and were styled “interpleaders” in the court below. Yock Jackson, who was a negro enrolled as a Choctaw freedman, alleged that ike was the father of Abby Bean, nee Jackson, and the maternal grandfather of Nicholas Bean and Lillian Bean. Sylvia Jackson alleged that she was the only surviving child of Yock Jackson and a half-sister to Abby Bean, nee Jackson. Yock Jackson and Sylvia Jackson contend that inasmuch as they are the next of kin of Abby Bean, the interest in the allotment of Nicholas Beau which passed to Lillian Bean upon his death ascended to them upon the death of the latter without descendants. On behalf of the defendants it is contended: (1) That inasmuch as Nicholas Bean was enrolled as a Chickasaw Indian, taking the enrollment blood of his father, Pelin Bean, it must be held that his allotment came to him by his father, and therefore upon his death the entire estate immediately ascended to Pelin Bean, the grantor of the defendants; (2) but if the foregoing contention is found to be untenable, Nicholas Bean being enrolled as a Chickasaw Indian, at his death one-half of his allotment went to Pelin .Beau and the other half to Lillian Bean," and at the death of Lillian Bean without descendants the half of the allotment that went to her ascended to Pelin Bean. In either of these events Pelin Bean had a right to convey the entire estate to the defendants. The-trial court took the view:
“That upon the death of Nicholas Bean the land sued for in this action ascended to his father, Felin Bean, and his sister, Lillian Bean, and upon the death of Lillian the whole of said title vested in said Pelin Bean”
—and entered judgment in favor of the defendants, to reverse which this proceeding in error was commenced by Ben Pinley as plaintiff in error, and Yock Jackson and Sylvia Jackson, as interpleaders and cross-petitioners in error.
It is agreed between counsel for the respective parties that the devolution of the land in controversy is governed by chapter 49, Mansfield’s Digest of the Laws of Arkansas, in force in the Indian Territory prior to statehood, and that the controlling part thereof is section 2531, which provides:
“In cases where the. intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs; but if the estate be a new acquisition it shall ascend to the father for his lifetime, and then descend, in remainder, to the collateral kindred of the intestate in the manner provided in this act; and. in default of a father, then to the mother, for her lifetime; then to descend to the collateral heirs as before provided.”
It is also conceded that the allotment of Nicholas Bean was an ancestral estate, and that its devolution is governed by the principles announced in Shulthis v. McDougal, 170 Fed. 529, 95 C. C. A. 615: Pigeon v. Buck. 38 Okla. 101. 131 Pnc. 1083; Id.. 237 U. S. 386. 35 Sup. Ot. 608. 59 L. Ed. 1007; Mc
Dougal v. McKay, 287 U. S. 372, 35 Sup. Ct. 605, 59 L. Ed. 1001; Id., 48 Okla. 251, 142 Pac. 987.
With these preliminary questions taken as settled, and out of the way, we will now proceed to examine the contentions of the respective parties.
If we understand the defendants’ first contention, it amounts to this: Inasmuch as Nicholas Bean was enrolled as a Chickasaw, the tribal blood of his father, it must be held that his allotment came to him by his father, and therefore, upon the death of Niehc/las without descendants, the land ascended to his father and Ms heirs, to the exclusion of his Ohoetaw mother and her heirs. We are unable to agree with this proposition. In Kelly v. McGuire, 15 Ark. 555, where section • 2531, supra, was fully considered, it was held that:
“The manifest intention of the first part of thjs section, was to preserve ancestral estates in the line of the blood from whence they came.”
This, no doubt, is a correct statement of the purpose of the section; but, in our judgment, it does not support the contention that the intention of the statute, when applied to Indian allotments, was to preserve the allotment in the line of any particular strain of Indian blood. In Thorn v. Cone et al., 47 Okla. 781, 150 Pac. 701, where the deceased allottees and their parents were all members of the Seminole Tribe of Indians, it was held that the allottees acquired the right to their allotments by their membership in the Seminole Tribe, and that, their father and mother being full-blood Seminóles, their allotments came to them through the blood of their tribal parents, and as much through the blood of one as the other.
In the case at bar, Nicholas Bean, by virtue of his mixed blood, had the right to acquire an allotment either as a Choetawi or a Chickasaw Indian. By the laws and treaties governing the disposition of tribal lands in the Choctaw and Chickasaw Nations, where the allottee had a Choctaw father and a Chickasaw mother, or vice versa, he was at liberty to select the tribe in w-Meh Ihe wished to be enrolled. It is common knowledge that where the allottee was a minor, as in the case at bar, it was the practice for the father and mother to select the tribe in which the minor allottee was to be enrolled, and it was not uncommon, where there were several children, to find some of them enrolled as Choctaws, and the balance as Chiekasaws, according to the will- of the parents. In these circumstances, the right to take an allotment was the birthright of the allottee. It came to him through his tribal parents, and as mudi through the blood of one as the other. It seems to us that to hold that the mere matter of enrollment and -selection of the allotment in the one tribe or the other determines the line of its devolution, where the allottee dies without descendants, would give to the statute a meaning it was never intended to have.
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KANE, J.
This was a controversy, involving the devolution of the allotment of Nicholas Bean, enrolled as a quarter-blood Chickasaw Indian, who died in infancy after receiving his allotment, leaving surviving him his father, Pelin Bean, who was enrolled as a half-blood Chickasaw1 Indian, and a sister, Lillian Bean; his mother, Abby Bean, nee Jackson, enrolled as a half-blood Choctaw Indian, having previously died. Subsequent to the death of Nicholas Bean, Lillian Bean, his sister, also died in infancy, leaving no descendants. The defendants «laim title through conveyancfes by Pelin Bean, the father, and his grantee, executed subsequent to the death of Lillian Bean. The plaintiff in error, Ben Pinley, as plaintiff'below, commenced this action to cancel these conveyances. Ben Pinley, the plaintiff, is a full-blood Choctaw, was the uncle of Ábby pean, and the great-uncle of Nicholas Bean and Lillian Bean. It was his contention that at the death of Nicholas Bean, one-half of his allotment ascended to ,his father, Pelin Bean, and the other half went to his sister, Lillian Bean, and that at the death of Lillian Bean without descendants half of the allotment which came to her ascended through the Choctaw blood of the mother and vested in Ben Pinley, he being the only surviving kinsman of Abby Bean. Yock Jackson and Sylvia Jackson, by order of court, filed an interplea, and were styled “interpleaders” in the court below. Yock Jackson, who was a negro enrolled as a Choctaw freedman, alleged that ike was the father of Abby Bean, nee Jackson, and the maternal grandfather of Nicholas Bean and Lillian Bean. Sylvia Jackson alleged that she was the only surviving child of Yock Jackson and a half-sister to Abby Bean, nee Jackson. Yock Jackson and Sylvia Jackson contend that inasmuch as they are the next of kin of Abby Bean, the interest in the allotment of Nicholas Beau which passed to Lillian Bean upon his death ascended to them upon the death of the latter without descendants. On behalf of the defendants it is contended: (1) That inasmuch as Nicholas Bean was enrolled as a Chickasaw Indian, taking the enrollment blood of his father, Pelin Bean, it must be held that his allotment came to him by his father, and therefore upon his death the entire estate immediately ascended to Pelin Bean, the grantor of the defendants; (2) but if the foregoing contention is found to be untenable, Nicholas Bean being enrolled as a Chickasaw Indian, at his death one-half of his allotment went to Pelin .Beau and the other half to Lillian Bean," and at the death of Lillian Bean without descendants the half of the allotment that went to her ascended to Pelin Bean. In either of these events Pelin Bean had a right to convey the entire estate to the defendants. The-trial court took the view:
“That upon the death of Nicholas Bean the land sued for in this action ascended to his father, Felin Bean, and his sister, Lillian Bean, and upon the death of Lillian the whole of said title vested in said Pelin Bean”
—and entered judgment in favor of the defendants, to reverse which this proceeding in error was commenced by Ben Pinley as plaintiff in error, and Yock Jackson and Sylvia Jackson, as interpleaders and cross-petitioners in error.
It is agreed between counsel for the respective parties that the devolution of the land in controversy is governed by chapter 49, Mansfield’s Digest of the Laws of Arkansas, in force in the Indian Territory prior to statehood, and that the controlling part thereof is section 2531, which provides:
“In cases where the. intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs; but if the estate be a new acquisition it shall ascend to the father for his lifetime, and then descend, in remainder, to the collateral kindred of the intestate in the manner provided in this act; and. in default of a father, then to the mother, for her lifetime; then to descend to the collateral heirs as before provided.”
It is also conceded that the allotment of Nicholas Bean was an ancestral estate, and that its devolution is governed by the principles announced in Shulthis v. McDougal, 170 Fed. 529, 95 C. C. A. 615: Pigeon v. Buck. 38 Okla. 101. 131 Pnc. 1083; Id.. 237 U. S. 386. 35 Sup. Ot. 608. 59 L. Ed. 1007; Mc
Dougal v. McKay, 287 U. S. 372, 35 Sup. Ct. 605, 59 L. Ed. 1001; Id., 48 Okla. 251, 142 Pac. 987.
With these preliminary questions taken as settled, and out of the way, we will now proceed to examine the contentions of the respective parties.
If we understand the defendants’ first contention, it amounts to this: Inasmuch as Nicholas Bean was enrolled as a Chickasaw, the tribal blood of his father, it must be held that his allotment came to him by his father, and therefore, upon the death of Niehc/las without descendants, the land ascended to his father and Ms heirs, to the exclusion of his Ohoetaw mother and her heirs. We are unable to agree with this proposition. In Kelly v. McGuire, 15 Ark. 555, where section • 2531, supra, was fully considered, it was held that:
“The manifest intention of the first part of thjs section, was to preserve ancestral estates in the line of the blood from whence they came.”
This, no doubt, is a correct statement of the purpose of the section; but, in our judgment, it does not support the contention that the intention of the statute, when applied to Indian allotments, was to preserve the allotment in the line of any particular strain of Indian blood. In Thorn v. Cone et al., 47 Okla. 781, 150 Pac. 701, where the deceased allottees and their parents were all members of the Seminole Tribe of Indians, it was held that the allottees acquired the right to their allotments by their membership in the Seminole Tribe, and that, their father and mother being full-blood Seminóles, their allotments came to them through the blood of their tribal parents, and as much through the blood of one as the other.
In the case at bar, Nicholas Bean, by virtue of his mixed blood, had the right to acquire an allotment either as a Choetawi or a Chickasaw Indian. By the laws and treaties governing the disposition of tribal lands in the Choctaw and Chickasaw Nations, where the allottee had a Choctaw father and a Chickasaw mother, or vice versa, he was at liberty to select the tribe in w-Meh Ihe wished to be enrolled. It is common knowledge that where the allottee was a minor, as in the case at bar, it was the practice for the father and mother to select the tribe in which the minor allottee was to be enrolled, and it was not uncommon, where there were several children, to find some of them enrolled as Choctaws, and the balance as Chiekasaws, according to the will- of the parents. In these circumstances, the right to take an allotment was the birthright of the allottee. It came to him through his tribal parents, and as mudi through the blood of one as the other. It seems to us that to hold that the mere matter of enrollment and -selection of the allotment in the one tribe or the other determines the line of its devolution, where the allottee dies without descendants, would give to the statute a meaning it was never intended to have.
Having reached this conclusion, it would follow that, upon the death of Nicholas Bean, without descendants, his allotment ascended equally to 'his father and to the heirs of his mother; that is, one-half to the surviving father, Felin Bean, and one-half to the surviving sister, Lillian Bean. That the part of the allotment inherited by Lillian continued to be an ancestral estate which came to her by her mother notwithstanding the previous death of the latter finds support in Kelly v. McGuire, supra, and West et al. v. Williams, 15 Ark. 692, which hold that ancestral estates embrace, not only descended estates, but also all others which may have come to the intestate by gift or ‘ devise from either parent or from any relative of the blood of either parent.
Further, following by analogy Thorn v. Cone and the other cases cited above, we are led to th-e conclusion that, upon the death of Lillian Bean without descendants, the land in controversy having come to her by (her mother, within the meaning of the statute, it ascended to the heirs of her deceased mother. The question therefore arises, Who are the heirs of Abby Bean, deceased? The plaintiff, Ben Finley, concedes that Yoek Jackson and Sylvia Jackson, the father and half-sister, respectively, of Abby Bean, are 'her nearest of kin, and would inherit the interest of Lillian Bean in the land in controversy except for the following circumstances: (1) Yoek and Sylvia Jackson being negro freedmen, the inheritance pas-sed them by and vested in Ben Finley, who is the nearest relation of Abby .Bean possessing Choctaw blood; (2) that the marriage of Yoek Jackson, a negro, and Sibbey Jackson, -the mother of Abby Bean, and a full-blood Choctaw, was void for the reason that at th-e date of its solemnization, siome time during the year 1881, there was in force in the Choctaw Nation the following statute:
“Be it enacted by the general council of the Ohoetaw Nation assembled:
“It shall not be lawful for a Ohoctaw and negro.to marry; and if a Ohoctaw man or woman should marry a negro man or woman, he or she shall be deemed guilty of a felony, and shall be proceeded against in the. circuit court of the Ohoctaw Nation haying jurisdiction the same as all other felonies are proceeded against; and if proven guilty shall receive fifty lashes on the bare back.”
A question similar to the first contention of counsel vías considered by this court and decided adversely to the same plaintiff in Ben Finley v. American Trust Co., 51 Okla. 489, 151 Pac. 865. In that case the devolution of the allotment of Ab'by Bean, the mother of Nicholas and Lillian Bean, was involved. It was conceded that the allotment was an ancestral estate, and that it came to Nicholas and Lillian by their mother, and that upon the death of Nicholas and Lillian it ascended to the heirs of the mother. Ben Finley, the plaintiff herein, was also plaintiff in that case, and contended, as in this case, that, toeing the nearest relation of the deceased allottee of Ohoc-taw blood, he was entitled to inherit the allotment of their deceased Choctaw mother to the exclusion of their nearer relations of negro blood. The court held:
“Where an allottee of the Ohoctaw Tribe of Indians enrolled as a half-blood died in December, 1906. intestate, leaving surviving her two children, aged, respectively, IS and 11 months, and a husband who was not a member of the tribe, her allotment descended, subject to the right of the husband by curtesy consummate, to said children in equal parts. Upon the death of one of said children, on May 9, 1907, his moiety was in'herited by the other. Upon the death of the last child, on May 26, 1907, its estate In said allotment, being ancestral, ascended in the maternal line, whence it' came, and passed to the nearest of kin to said child who were of the 'blood of its mother regardless of the fact that such persons were' not members of the tribe (applying sections 2522 and 2631, Mansfield’s Digest of tl;e Laws of Arkansas).”
A sufficient answer to the second contention of counsel, it seems to us, is that the Choctaw statute invoked has long since become absolute and unenforceable. Section 26 of the act of Congress of June 28, 1898 (30 Stat. at L. 504) provides:
“That on and after the passage of this act the laws of the various tribes or nations of Indians shall not be enforced at law or in equity by the courts of the United States in the Indian Territory.”
As these statutes were never enforceable by the courts of the state and the courts of tlié United States are prohibited from enforcing them, it would seem that the plaintiff is without a tribunal wherein a marriage may be declared void for no other reason than that it was violative of a tribal law of the Choctaw Nation at the time it was solemnized. McAllaster v. Edgerton, 3 Ind. T. 712, 64 S. W. 585; George v. Robb, 4 Ind. T. 1, 64 S. W. 615: Nivens v. Nivens, 4 Ind. T. 30, 64 S. W. 601.
Having 'reached the conclusion that there is no impediment in the way of the Jack-sons inheriting the land in controversy, we will assume that their counsel is correct in his contention, which is not disputed by the other parties, that each takes an undivided half interest thereof^ pursuant to the third subdivision of section 2522, Mansf. Dig. Ark., which provides:
“If there be no children, nor their descendants, -father, mother, brothers or sisters, 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 (o the nearest lineal ancestor, and their children and their descendents, in equal parts.”
The only question remaining for consideration is the further contention of the defendants, to the effect that, even if it is found that Yoqk Jackson inherited any portion of the land in controversy, he subsequently conveyed the same to the defendants by deed, and the counter contention by Yoek Jackson that such deed wias procured by fraud. This being purely a question of fact, we. would not ordinarily disturb the finding of the trial court in favor of the defendants. But as gross inadequacy of consideration for the deed was one of the elements relied upon to establish fraud, it is probable that the trial court may have been influenced in his findings on this point by his erroneous view of the law that Yock Jackson inherited no part of the land involved, and hence had nothing to convey. In these circumstances, we think a new trial should be granted on this question alone.
For the reasons stated, the judgment of the court below is reversed and the cause remanded, with directions to the trial court to proceed in accordance with the views herein expressed.
All the Justices concur.