¶1 On Rehearing.
¶2 On rehearing, the court’s attention is called for the first time to the fact that the minor Jerome Roberson did not acquire his interest in the estate through the will. The will mentions three children of the testator by his last wife, to wit, Margaret Roberson, Lillian Roberson, and Albert Roberson, and does not mention Jerome Roberson, nor make any provision for any child born after the execution of the will. The evidence discloses that Jerome Roberson was born after the execution of the will, hut prior to the death of the testator. His rights in the estate are controlled by section 8371, Rev. Laws 1910:
“Whenever a testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving .such child unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, the child succeeds to the same portion’ of the testator’s real and personal property that he would have succeeded to- if the testator had died intestate.”
¶3 The facts bring Jerome Robers'on squarely within this provision of the statute. He did not derive his interest in the property by virtue of the will, but takes direct by inheritance from his father, as if his father had died intestate, as provided in section 8373, Rev. Laws 1910. The provisions of the will granting to Henrietta Roberson, the wife and executrix, authority to sell, convey, or mortgage the property gave her no such authority as to the interest of the minor Jerome Roberson, as his interest in the property is not subject to the provisions of the will. What portion of the estate did he inherit? The record discloses that this property was obtained by Mr. Roberson by patent from the Choctaw and Chickasaw Nations in 1905, and during his marriage with the last wife. The deceased died intestate as to Jerome Roberson, and his interest is ascertained by determining how the property would descend if there were no will. The wife would inherit one-third of the property and the remaining two-thirds would be equally divided between the eleven children of the deceased, to wit, the seven children by his first marriage' and the four children by fhe last marriage. Jerome Roberson would inherit one-eleventh of two-thirds, or two thirty-thirds, of said property. The judgment of the distinct court is therefore affirmed as to all parties except as to Jerome Roberson, and reversed as to him, with directions for the district court to enter judgment for the said Jerome Roberson for two thirty-thirds of said property.