Opinion by
DEVEREUX, C.
(after stating the facts as above). On the above facts, it is seen that the defendant claims title from two sources: (1) Under the will of Lotka to his wife, Supsy, her deed to Fears, and Fears’ deed to him. ■ (2) Under- the deed from the plaintiff and her husband to Fears, and Fears’ deed to. the defendant.
The first question, therefore, is whether a will executed by an Indian of his allotment, at a time when he had no power to make a deed therefor, is validated by section 23 of the act of April 26, 1906 (34 Stat. 137, Federal Statutes Annotated,. Supplement 1909, p. 200), when the Indian dies after the passage of this act. This question came before this court in
Nesbit v. Gragg,
36 Okla. 703, 706, 129 Pac. 705, 706, but was not decided; the court saying:
“The very interesting questions of whether or not Arthur Nesbit has rights as an heir under the special act of the Chickasaw Nation and the facts of the case, and whether the. demise of the homestead allotment is valid, where the will was executed before, but the testator died after, the enactment of the law authorizing the devise, are open ones, and no opinion is expressed.”
The question thus left open, because not necessary to the decision of
Nesbit v. Gragg, supra,
is now squarely before us. It cannot be doubted, in view of the great weight of authority, that where a testator is incapaci
tated by law from making a will, but such incapacity is afterwards removed, a will made during the incapacity must be republished after the removal of the restriction, to become a valid will. Such would be the case, under our statute, if a will was made by an infant under the statutory age, and the infant should die after becoming of age. In such a case, unless there was a republication, the will would be void. Schouler on Wills (3d Ed.) section 41. But that is not the case presented here. Lotka was under no disability to make a will, and the will he did make was perfectly valid as a will; but he had no power at the time the will was executed to devise his allotment. In other words, the restriction was not on his power to make the will, but applied only to his right to pass title to this particular land by will. That he had no right to do so prior to the act .of April 26, 1906, is settled. See
Hayes v. Barringer,
7 Ind. T. 697, 104 S. W. 937, affirmed on error in 168 Fed. 221, 93 C. C. A. 507; Bledsoe, Indian Lands Laws (2d Ed.) section 6.0.
The question, therefore, turns upon the’ proper construction of section 23 of the act of April 26, 1906, which was in force at the time of Lotka’s death. This statute provides:
“Every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal,, and all interest therein: Provided, that no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such full-blood Indian, unless acknowledged before and approved by the judge of the United States Court for the Indian Territory, or a United States commissioner, or a judge of the county court of the State of Oklahoma.”
This statute removes the disability to dispose by will of the land in question, and we think it must be construed in the same manner as if this land were after-acquired property. In the one case, the land is acquired after the execution of the will, but before death; in the other, the right to dispose of the land is acquired after the will is executed, but before death. In our opinion, the analogy between the two conditions is complete, and the same rules must govern.
Under the Wills Act of 32 Henry VIII, it was well settled that after-acquired lands did not pass, while after-acquired personal property did. In discussing the question, the Supreme Court of the United States say, in
Hardenbergh v. Ray,
151 U. S. 112, on page 119, 14 Sup. Ct. 305, on page 306, 38 L. Ed. 93:
“In support of the first proposition, it is urged, on behalf of the plaintiff in error, that the common law, with its limitations and restrictions upon testamentary power in respect to real estate, was in force in the State of Oregon at the date of the execution of the will, and up to .the death of the testator. Without reviewing the authorities, it is well settled that by the common law lands were not devisable, except in .particular places where custom authorized it; This disability of the common law was partially removed by the statute of 32 Henry VIII, c. 1, which authorized persons having title to land to dispose thereof by will, and was construed as restricting the right of devising lands to such an interest only as the testator had at the time of the execution of the will. Under this statute real estate, subsequently acquired, could not pass by devise; 'n other words, under the statute of 32 Henry VIII the will as to lands spoke from the date of it's execution. So that a general devise of all the testator’s estate would comprehend and include all the personalty to which he was entitled at the time of his death, but would not embrace after-acquired land, though
such might be the expressed intention of the testator. The reason given for the distinction between real and personal estate was that a devise of land was regarded in the same light as a conveyance, and, as a conveyance at common law would not vest for want of seisin, it was therefore held to be operative only on such real estate as the testator might have at the time of the making of the will; that is to say, that a devise was in the nature of a conveyance, or appointment of real estate then owned, to take effect at a future date, and could not therefore operate on future acquisitions. While this strict and arbitrary rule of the common law has been modified by the statutes of most, if not all, of the states of the Union, it is contended for the plaintiff in error that the rights of the parties in the present case are controlled by it, for the reason that the Legislature of Oregon did not confer by statute testamentary power to dispose of after-acquired real property until February, 1891.”
In that case the statute of Oregon, which was taken from Missouri, provided that any person may by last will devise all of his estate, real, personal, and mixed. This statute was construed by the Supreme Court of Missouri in
Liggat v. Hart,
23 Mo. 127, to authorize the devising of after-acquired property, and this construction was approved by the Supreme Court of the United States in
Hardenbergh v. Ray,
151 U. S. 112,
supra,
and on page 129, 14 Sup. Ct. 305, on page 310, 38 L. Ed. 93, the court lays down the following rule:
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Opinion by
DEVEREUX, C.
(after stating the facts as above). On the above facts, it is seen that the defendant claims title from two sources: (1) Under the will of Lotka to his wife, Supsy, her deed to Fears, and Fears’ deed to him. ■ (2) Under- the deed from the plaintiff and her husband to Fears, and Fears’ deed to. the defendant.
The first question, therefore, is whether a will executed by an Indian of his allotment, at a time when he had no power to make a deed therefor, is validated by section 23 of the act of April 26, 1906 (34 Stat. 137, Federal Statutes Annotated,. Supplement 1909, p. 200), when the Indian dies after the passage of this act. This question came before this court in
Nesbit v. Gragg,
36 Okla. 703, 706, 129 Pac. 705, 706, but was not decided; the court saying:
“The very interesting questions of whether or not Arthur Nesbit has rights as an heir under the special act of the Chickasaw Nation and the facts of the case, and whether the. demise of the homestead allotment is valid, where the will was executed before, but the testator died after, the enactment of the law authorizing the devise, are open ones, and no opinion is expressed.”
The question thus left open, because not necessary to the decision of
Nesbit v. Gragg, supra,
is now squarely before us. It cannot be doubted, in view of the great weight of authority, that where a testator is incapaci
tated by law from making a will, but such incapacity is afterwards removed, a will made during the incapacity must be republished after the removal of the restriction, to become a valid will. Such would be the case, under our statute, if a will was made by an infant under the statutory age, and the infant should die after becoming of age. In such a case, unless there was a republication, the will would be void. Schouler on Wills (3d Ed.) section 41. But that is not the case presented here. Lotka was under no disability to make a will, and the will he did make was perfectly valid as a will; but he had no power at the time the will was executed to devise his allotment. In other words, the restriction was not on his power to make the will, but applied only to his right to pass title to this particular land by will. That he had no right to do so prior to the act .of April 26, 1906, is settled. See
Hayes v. Barringer,
7 Ind. T. 697, 104 S. W. 937, affirmed on error in 168 Fed. 221, 93 C. C. A. 507; Bledsoe, Indian Lands Laws (2d Ed.) section 6.0.
The question, therefore, turns upon the’ proper construction of section 23 of the act of April 26, 1906, which was in force at the time of Lotka’s death. This statute provides:
“Every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal,, and all interest therein: Provided, that no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such full-blood Indian, unless acknowledged before and approved by the judge of the United States Court for the Indian Territory, or a United States commissioner, or a judge of the county court of the State of Oklahoma.”
This statute removes the disability to dispose by will of the land in question, and we think it must be construed in the same manner as if this land were after-acquired property. In the one case, the land is acquired after the execution of the will, but before death; in the other, the right to dispose of the land is acquired after the will is executed, but before death. In our opinion, the analogy between the two conditions is complete, and the same rules must govern.
Under the Wills Act of 32 Henry VIII, it was well settled that after-acquired lands did not pass, while after-acquired personal property did. In discussing the question, the Supreme Court of the United States say, in
Hardenbergh v. Ray,
151 U. S. 112, on page 119, 14 Sup. Ct. 305, on page 306, 38 L. Ed. 93:
“In support of the first proposition, it is urged, on behalf of the plaintiff in error, that the common law, with its limitations and restrictions upon testamentary power in respect to real estate, was in force in the State of Oregon at the date of the execution of the will, and up to .the death of the testator. Without reviewing the authorities, it is well settled that by the common law lands were not devisable, except in .particular places where custom authorized it; This disability of the common law was partially removed by the statute of 32 Henry VIII, c. 1, which authorized persons having title to land to dispose thereof by will, and was construed as restricting the right of devising lands to such an interest only as the testator had at the time of the execution of the will. Under this statute real estate, subsequently acquired, could not pass by devise; 'n other words, under the statute of 32 Henry VIII the will as to lands spoke from the date of it's execution. So that a general devise of all the testator’s estate would comprehend and include all the personalty to which he was entitled at the time of his death, but would not embrace after-acquired land, though
such might be the expressed intention of the testator. The reason given for the distinction between real and personal estate was that a devise of land was regarded in the same light as a conveyance, and, as a conveyance at common law would not vest for want of seisin, it was therefore held to be operative only on such real estate as the testator might have at the time of the making of the will; that is to say, that a devise was in the nature of a conveyance, or appointment of real estate then owned, to take effect at a future date, and could not therefore operate on future acquisitions. While this strict and arbitrary rule of the common law has been modified by the statutes of most, if not all, of the states of the Union, it is contended for the plaintiff in error that the rights of the parties in the present case are controlled by it, for the reason that the Legislature of Oregon did not confer by statute testamentary power to dispose of after-acquired real property until February, 1891.”
In that case the statute of Oregon, which was taken from Missouri, provided that any person may by last will devise all of his estate, real, personal, and mixed. This statute was construed by the Supreme Court of Missouri in
Liggat v. Hart,
23 Mo. 127, to authorize the devising of after-acquired property, and this construction was approved by the Supreme Court of the United States in
Hardenbergh v. Ray,
151 U. S. 112,
supra,
and on page 129, 14 Sup. Ct. 305, on page 310, 38 L. Ed. 93, the court lays down the following rule:
“It may, therefore, be laid down as a general proposition that where the testator makes a general devise of his real estate, especially by residuary clause, he will, be considered as meaning to dispose of such property to the full extent of his capacity, and that such a devise will carry, not only the property held by him' at the execution of the will, but also real estate subsequently acquired, of which he may be seised and possessed at the date of his death, provided there is testamentary power to make such
disposition. 1 Jarman on Wills (5th Ed.) 326, and other authorities cited.”
The language of the Missouri statute above set out is practically the same as that of section 23 of the act of April 26, 1906, above set out. The Missouri statute, which was held to pass after-acquired property, is that any person may by last will devise all of his estate, real, personal, and mixed. The language of section 23 is that every, person, of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and' personal, and all property therein. We can see no difference in the meaning of the two statutes, and we are of opinion that the will of Lotka passed the title to the land to his devisee.
Section 32 of the act of June 25, 1910 (36 Stat. at Large, 863, c. 431; 1 Fed. Stat. Anno. Sup. 1912, p. 103), has no application to this case, because that statute only applies to cases where the Indian dies before the approval of the allotment deed, and the agreed statement of facts in this case does not give the date of the allotment deed.
It is contended by the plaintiff in error that, granting the will of Lotka to be sufficient to pass the title, yet the provisions of the Arkansas statute (Mansfield’s Digest, c. 155, sec. 6500), govern, which provide:
“When any person shall make his last will and testament, and omit to name a child, if living, or the living representatives of such child bom and living at the time of the execution of such will, every such person, so far as regards such child, shall be deemed to have died intestate,” etc. /
The argument is that as the plaintiff was the representative of Lah-me, the son of the testator, and.- was
born and living at the time of the execution of the will, and was not mentioned in the will, as to her Lotka died intestate, and that the devisee took only her dower right; and the case of.
In re Brown’s Estate,
22 Okla. 216, 97 Pac. 613, is cited as in point. We do not think so. In that case, the testatrix, Julia Brown, died on November 13, 1905, and, of course, prior to the act of Congress of April 26, 1906. The only power to make a will was derived from the Arkansas statutes, and the court followed their provisions in regard to the omission of the name of a child of the testator. But in the case at bar the will derives its validity from the act of Congress of April 26, 1906, and the proviso of this statute is:
“That no will of a full-blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse or children of such full-blood Indian,” etc.
The difference between this act and the Arkansas statute is plain. The Arkansas statute is: If the testator fails to name a child, if living, or the representative of such child born and living at the time of the execution of the will, the testator is deemed intestate as to such omitted person. The act of Congress is: That the Indian shall not disinherit his wife, parent, spouse, or' children, but no mention is made of the legal representative of children, nor is there any provision, as in the Arkansas statute, that the child or representative niust be named in the will. The United States has full control of Indian affairs, and any law passed by Congress in regard to the devolution of Indian land supersedes any state law on the subject. See
Collins Investment Co. v. Beard,
46 Okla. 310, 148 Pac. 846, decided May 11, 1915. In
Proctor v. Harrison,
34 Okla. 181, 125 Pac. 479, the will of one Tay
lor Foley was contested by his widow; but, having been acknowledged in accordance with the proviso of the act •of April 26, 1906, the will was upheld. This case does not decide the point presented in the case at bar, but we cite it as. an authority that the act of April 26, 1906, was the law governing Indian wills after its enactment.
Van Court & Reubelt
and
Ramsey, de Meules & Ros-
ser, for plaintiff in error.
Blanton & Andrews, amici curiae.
We are therefore of opinion that the will of Lotka passed to the devisee a title in fee to the lands in controversy, and that the defendant obtained the title from her. This makes it unnecessary to decide the question whether or not the deed of plaintiff required approval.
We therefore recommend that the judgment be affirmed.
By the Court: . It is so ordered.