¶1Section 11224, C. O. S. 1921, provides:
¶2"Every estate and interest in real or personal property to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will; Provided, that no marriage contract in writing has been entered into between the parties; no man while married shall bequeath more than two-thirds of his property away from his wife, nor shall any woman while married bequeath more than two-thirds of her property away from her husband; Provided, further, that no person who is prevented by law from alienating, conveying or encumbering real property while living shall be allowed to bequeath same by will." *144
¶3This section of the statute was in force at the time the allottee of the land involved in this cause of action died. Jennie George, a member of the Creek Tribe of Indians, prior to her death bequeathed to her husband, Willie George, the sum of $5 by her last will and testament, which was not one-third of her estate. Under this section of the statute she could not devise more than two-thirds of her estate away from her husband. This section of the statute has been construed by this court, and it has been held in a number of cases that a husband cannot devise more than two-thirds of his property away from his wife, or a wife cannot devise more than two-thirds of her property away from her husband.
¶4This being true, upon the death of Jennie George an undivided one-third interest of her estate vested in her husband, Willie George, and he became the owner thereof.
¶5This court in Blundell v. Wallace, 96 Okla. 26, 220 P. 40, held this provision of the state is applicable to Indian citizens as well as other citizens of the state. The majority opinion in this cause holds that this section of the statute does not apply to a full-blood Indian citizen of this state. Blundell v. Wallace, supra, was appealed to the Supreme Court of the United States, and it was urged there that section 11224, supra, was in conflict with section 23 of the Act of Congress of April 26, 1906, as amended by the Act of May 27, 1908, sec. 8. Section 23. reads as follows:
¶6"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 a judge of the United States court for the Indian Territory, or a United States commissioner."
¶7The Supreme Court of United States, in an opinion by Mr. Justice Sutherland, reported in 69 L.Ed. 664, passed squarely on this Question, and held that section 23, supra, was not in conflict with the Oklahoma statute; that section 23, supra, merely removed existing restrictions and left Indian citizens subject to the provisions of the laws of the state where the Indian was situated, and, therefore, an Indian woman could not will more than two-thirds of her property away from her husband if the state law forbade it.
¶8The opinion in the instant case is diametrically opposed to the holding in the Blundell v. Wallace Case, supra, by this court, which was affirmed by the Supreme Court of United States. The Supreme Court of United States said at page 376 of the opinion:
¶9"A brief reference to the state of the law at the time of the passage of section 23 will help to clear the way for a correct determination of the question. By sections 12 and 16 of the Supplemental Agreement with the Choctaws and Chickasaws, ratified by the Act of July 1, 1902, supra, lands of the kind here involved were declared to be inalienable during specified periods of time. It is settled that this restriction against alienation extended to a disposition by will (Taylor v. Parker,235 U.S. 42, 59 L.Ed. 121, 35 Sup. Ct. Rep. 22); and, but for section 23, it is plain that the devise in question, at least as to the homestead, would have been without effect.
¶10"But, it must be, borne in mind, the restriction was in respect of the specified lands, and did not affect the testamentary power of the Indians to dispose of their alienable property, which power, on the contrary, has been fully recognized, first, by an extension of the appropriate laws of Arkansas over the Indian Territory, and then, upon the admission of the state of Oklahoma, by the substitution therefor of Oklahoma law. Taylor v. Parker, supra; Jefferson v. Fink, 247 U.S. 288. 294. 62 L.Ed. 1117, 1123, 38 Sup. Ct. Rep. 516. The general policy of Congress prior to the adoption of section 23 plainly had been to consider the local law of descents and wills applicable to the persons and estates of Indians, except in so far as it was otherwise provided. Thus, by section 2 of the Act of April 28, 1904, chap. 1824, 33 Stat. at L. 573, the laws of Arkansas, theretofore put in force in the Indian Territory, were expressly continued and extended in their operations, so as to embrace all persons and estates in said territory, whether Indian, freedman, or otherwise, and jurisdiction was conferred upon the courts of the territory in the settlement of the estates of decedents, etc., whether Indian, freedmen, or otherwise.
¶11"Section 23 must be read in the light of this policy; and so reading it, we agree with the ruling of the state Supreme Court that Congress intended thereby to enable the Indian to dispose of his estate on the same footing as any other citizen, with the limitation contained in the proviso thereto. The effect of section 23 was to remove a restriction theretofore existing upon the testamentary power of the Indians, leaving the regulatory local law free to operate in the case of other persons and property. There is nothing in Blanset v. Cardin,256 U.S. 319, 65 L.Ed. 950, 41 Sup. Ct. Rep. 519, cited to the contrary, which militates against this view. That case involved the will of a *145 Quapaw woman, devising her restricted lands away from her husband. It was held that section 8341 (now sec. 11224) of the Oklahoma laws did not apply because it was in conflict with an act of Congress. But the act there considered was very different from the one now under review. There the authority to dispose of restricted property by will was limited by the provisions of the Act of February 14, 1913, chap. 55, 37 Stat. at L. 678, Comp. Stat. sec. 4228, 3 Fed. Stat. Anno. 2d Ed. p. 855, that the will must be 'in accordance with regulations to be prescribed by the Secretary of the Interior', and that no will 'shall be valid or have any force or effect unless and until it shall have been approved by that officer.' By this language the intent of the Congress to exclude the local law and to establish the regulations of the Secretary as alone controlling was made evident; and it was so held. But here the federal statute contains no provisions of like character; it is without qualification except in the single particular set forth in the proviso; and, clearly, it does not stand in the way of the operation of the local law."
¶12The majority opinion cites as authority the case of Blanset v. Cardin, 256 U.S. 319, 65 L.Ed. 950. This case involved the will of a Quapaw Indian, who was not a member of the Five Civilized Tribes. The will in the case at bar involves the will of a Creek Indian, who was a member of the Five Civilized Tribes. The statute under which the Quapaw woman's will was made, 37 Stat. at L. 678, chap. 55, specifically provides that sections 1 and 2 of this act shall not apply to the Five Civilized Tribes of Indians or the Osage Indians. So the statute under which the Quapaw Indian's will was made specifically provided that it did not apply to the Five Civilized Tribes, and should not be made to apply to the Creek woman's will in the instant case.
¶13The same contention was made before the Supreme Court of United States in Blundell v. Wallace, supra, and the Supreme Court of the United States specifically held that the case of Blanset v. Cardin, supra., did not apply, and was not an authority and did not apply to a member of the Five Civilized Tribes. The Supreme Court said that that case involved the will of the Quapaw woman devising her restricted lands away from her husband. It was held that section 8341, now 11224, of the Oklahoma laws did not apply because it was in conflict with the act of Congress. The act there considered was very different from section 23, supra.
¶14I am of the opinion, under the authorities cited, that the Oklahoma law should be upheld and judgment of the trial court should be reversed, with directions to enter judgment for the plaintiffs in error.
¶15SWINDALL, J., concurs in the dissent.
¶17When the opinion of this court was delivered January 6, 1931, Mr. Justice Clark, Mr. Justice Riley, and I dissented. At that time Mr. Justice Clark wrote a dissenting opinion in which I concurred. Since then a petition for rehearing has been filed and this day denied. I now desire to call the attention of my associates to the language of Mr. Justice Holmes, of the Supreme Court of the United States, in a special concurring opinion in the case of Francis Beidler, II, and George Engelking, as Executors of the Last Will and Testament of Francis Beidler, Plaintiffs in Error, v. South Carolina Tax Commission, which opinion was filed November 24, 1930, 51 S. Ct. 54, 75 Law Ed. ___, wherein he said:
¶18"The decisions of last term cited by the Chief Justice seem to sustain the conclusion reached by him. Therefore Mr. Justice Brandeis and I acquiesce, without repeating reasoning that did not prevail with the court."
¶19So, in this case, without repeating the reasoning of Mr. Justice Clark that did not prevail with the majority of this court, I desire to add the following to the views expressed by my associate, Mr. Justice Clark.
¶20At the time the Act of Congress, April 26, 1906, was passed, and at the time the same was amended by the Act of May 27, 1908, there was no restriction in the laws of Oklahoma against a husband or wife disinheriting the other. Section 6168, Statutes of Oklahoma Territory, 1893, and section C803, Wilson's Statutes of Oklahoma Territory, 1903.
¶21As said by the Supreme Court of the United States in the case of Blundell v. Wallace, 69 L.Ed. 664, it was the intention of Congress at the time of the passage of the acts above mentioned to remove restrictions so that a member of the Five Civilized Tribes could dispose of his property by will according to the laws of the state of Oklahoma, but at that time, under the laws of the state of Oklahoma, a husband or wife could disinherit the other or any of their children. Congress evidently wanted to guard against the exercise of this right by full-blood members of the Five Civilized Tribes, and provided a safeguard against the free *146 exercise of such right by the proviso appearing in the act. If the law had been as it now reads, Congress in all probability would not have added the proviso, as there would have been no necessity for it.
¶22The Legislature of Oklahoma passed an act which was approved by the Governor on March 27, 1909, amending section 6168, Statutes of Oklahoma, 1893, to provide, among other things, that no married man or married woman while married could bequeath more than two-thirds of his or her property away from the other. This statute as amended was brought forward as section 11224, C. O. S. 1921, which section was in force at the date of the death of Jennie George. It is her will that is involved in this action. The section last mentioned was again amended by the Legislature in 1925, Session Laws of 1925, at page 30. The last amendment is not material here, as it was made after the death of Jennie George.
¶23The Acts of Congress of 1906 and 1908 should be construed in the light of the contemporaneous circumstances and in the light of the Oklahoma law then existing, and not in the light of the Oklahoma law as it now exists.
¶24In my opinion, section 23 of the Act of Congress of April 26, 1906, authorizes any Indian of lawful age and sound mind by last will and testament to devise and bequeath all of his estate, real and personal, and all interest therein, according to the local laws of the state, limited by the proviso 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 a judge of the United States Court for the Indian Territory, or a United States commissioner, or a judge of a county court of the state of Oklahoma. This was not intended to be a limitation or restriction on the operation of the local laws, but a matter of precaution on the part of Congress to protect the Indian and the relatives of the Indian citizen against designing persons who might seek to induce the Indian to will and bequeath his or her property to a stranger and disinherit the parent, wife, spouse, or children of such full-blood Indian, where the state laws (did not restrict the citizens of the state in the disposition of their property by will.
¶25The limitation in the proviso was to be in addition to the provisions of the local laws and not a limitation on the operation thereof which in no way conflicts with the acts of Congress.
¶26The majority opinion follows Blansett v. Cardin,256 U.S. 319, which was held by the Supreme Court of the United States not to be applicable to the Five Civilized Tribes, in Blundell v. Wallace, supra, where that court said:
¶27"But here the federal statute contains no provision of like character; it is without qualification except in the single particular set forth in the proviso; and, clearly, it does not stand in the way of the operation of the local law."
¶28Since the Supreme Court of the United States has held that the acts of Congress herein mentioned do not stand in the way of the operation of the local law, section. 11224, C. O. S. 1921, I see no reason why this court should hold that said acts of Congress do stand in the way of the local law, and in my opinion that is just what the majority opinion holds.
¶29Other cases supporting the view that it was the intention of Congress that the laws of the state of Oklahoma should govern in cases of this nature are: Charles C. Childress, State Auditor, v. John Beavers, 70 L.Ed. (U.S.) 730; Tiger v. Slinker 4 F.2d 714; Kunkel v. Barnett, 10 F.2d 804; Jefferson v. Fink, 247 U.S. 288; United States v. Fox,94 U.S. 315. In the last case, the Supreme Court of the United States says:
¶30"It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated. … The power of the state in this respect follows from her sovereignty within her limits, as to all matters over which jurisdiction has not been expressly or by necessary implication transferred to the federal government. The title and modes of disposition of real property within the state, whether inter vivos or testamentary, are not matters placed under the control of federal authority. Such control would be foreign to the purposes for which the federal government was created, and would seriously embarrass the landed interests of the state."
¶31For the reasons stated by Mr. Justice Clark in his dissenting opinion, supplemented by the reasons herein stated, I cannot concur with the majority of my associates in the opinion filed January 6, 1931, and most respectfully dissent.
¶32I am authorized to say Mr. Justice Riley concurs in this dissent. *147