After quoting from the opinion of the Circuit Court of Appeals in the Shulthis-McDougal Case the court concludes as follows: "Many titles to lands on the eastern side of this state have been acquired on the strength of this decision, and to such an extent that the same has become a rule of property there.

A writ of error has been sued out to have the judgment of the Supreme Court of the state in this case reviewed by the Supreme Court of United States.

It is extremely desirable that it be finally adjudged, and without delay, whether the estate received by an allottee of the Five Civilized Tribes is ancestral or a new acquisition, as the uncertainty of the law upon this subject is a source of great embarrassment in the development of the country. The author has never believed the rule prescribed in the case of Shulthis v. McDougal is sound or in harmony with either the language of the Arkansas statute or its interpretation prior to its extension over the Indian Territory. Neither does he believe that the rule there declared is capable of affording a solution of the difficulties arising out of the descent of allotted Indian lands.

The ancestral estate under the Arkansas statute is the estate of inheritance under the common law enlarged so as to include a gift, grant, or devise made by either of the parents. In such a case the estate descends to the children and their descendants, and in the absence of children or their descendants it ascends to those of the blood through whom the estate came, to the exclusion of those of the blood of the other parent. In estates of inheritance, in the absence of descendants, the property goes exclusively to the heirs of the deceased who are of the blood of the ancestor from whom the estate came, and in no event does such an estate ascend to any one who is not of the blood of the ancestor.

The new acquisition is substantially the estate by purchase of the common law, limited by having carved out of

the same estates by gift, grant, or devise from the parents or either of them. In such a case the estate descends to the children and their descendants, and in the absence of children or their descendants ascends to the father for his lifetime, then to the mother for her lifetime, and then to the collateral kindred in fee; the father's family being given preference only over the mother's family. Under the interpretation given to the Arkansas statute by the Circuit Court of Appeals for the Eighth Circuit and the Supreme Court of the state the courts and lawyers of the state are presented with the problem of following an ancestral estate through two separate and distinct lines of heirship, something unheard of in ancestral estates, and which probably will be difficult in practical application.

It will be observed that the Circuit Court of Appeals held that. inasmuch as one of the parents was not of Indian blood, the full title passed to that parent who was of Indian blood.

In the case decided by the Supreme Court of the state both parents were of Indian blood and survived the allottee, and it was held that the estate passed in equal moieties to the father and mother. Suppose that the father or mother only had survived, would the entire estate have gone to the survivor, or would it have gone half to the survivo: and half to the heirs of the deceased parent? Upon the death of either of the parents without descendants, where both parents survive the allottee, by what rule is the right of descent to be determined?

These are only a few of the perplexing questions that will arise from the establishment of a rule creating two separate and independent ancestors to and from whom the descent of an ancestral estate must be followed.

§ 245. Dower.-Under chapter 53 of Mansfield's Digest a widow is endowed of the third part of all the lands whereof her husband was seised of an estate of inheritance at any time during marriage unless the same shall have been

relinquished in legal form. The most serious question in connection with the application of the statute on dower interest in Indian lands is when the husband becomes seised of an estate of inheritance under the statute to which the widow's dower may attach.

It is believed that upon the selection and acceptance of an allotment the estate secured is one to which the right of dower attaches, that prior to such selection the title is in the tribe and there is no devisable interest, and therefore neither seizin nor estate of inheritance to which dower may attach.”

One of the more serious questions is the right of the wife to dower in land allotted in the name of a deceased member of the tribe. In this class of cases it has been most seriously contended than elsewhere that the right of dower attached prior to the selection of the land in allotment. But there seems to be no foundation for the application of a different rule in cases of this character. The right of a white woman who is intermarried with a member of the Indian tribe to take dower in his estate upon his death, other conditions justifying the same, has been the subject of much controversy but finally established."

On the admission of the state of Oklahoma into the Union and the extension of the territorial statutes of descent and distribution over the state dower was abolished Where the husband died before statehood and the wife's dower had thereby become vested such right was not affected by the extension of the law of the territory of Oklahoma over the state.

4 Tate v. Jay, 31 Ark. 576; Hatcher v. Buford, 60 Ark. 169, 29 S. W. 641, 27 L. R. A. 507; Smith v. Howell, 53 Ark, 279, 13 S. W. 929.

5 Hawkins v. Stevens, 21 Okl. 849, 97 Pac. 567; Melton v. Lane, 29 Okl. 383, 118 Pac. 141, Ann. Cas. 1913A, 628; Curry v. McDaniel, 33 Okl. 19, 124 Pac. 319; Burdett v. Burdett, 26 Okl. 416, 109 Pac. 922, 35 L. R. A. (N. S.) 964; Armstrong v. Wood (C. C.) 195 Fed. 137; Wheeler v. Petite (C. C.) 153 Fed. 471; McCauley v. Tyndall, 68 Neb. 685, 94 N. W. 813; Reese v. Harlan, 77 Neb. 485, 109 N. W. 762.

• Hawkins v. Stevens, 21 Okl. 849, 97 Pac. 567.

What was the effect of the repeal of the statute upon the inchoate rights of the wife, where the marriage had taken place under the Arkansas law in force in the Indian Territory and the husband had acquired and held real estate at the time of the admission of the Indian Territory to statehood?

In the earlier Arkansas cases dower is mentioned as a vested right. The later cases, however, deprive dower of all the attributes of a vested right.'

Dower is a form of inheritance prescribed by law. No constitutional reason can be urged why the law affecting dower may not be changed before death, as can the law regulating the descent of property from one line of heirs to another during the life of the ancestor. Under the Arkansas statute much formality was required in the relinquishment of dower. This affected, not only the form of the conveyance, the form and manner of taking acknowledgments, but limited the grantee to the one who held the legal title.

§ 246. Curtesy-Prerequisite of.-Under the common law of Arkansas, as extended and made applicable to the estates of all persons within the Indian Territory, the right of the husband to curtesy in the estate of the wife is recognized where all common-law conditions exist. These conditions, as declared by the Supreme Court of Arkansas, are: First, marriage; second, issue born alive; and, third, actual seisin of an estate of inheritance by the wife during

8

7 Smith v. Howell, 53 Ark. 279, 13 S. W. 929; Littell v. Jones, 56 Ark. 139, 19 S. W. 497.

8 McDaniel v. Grace, 15 Ark. 465; Harrod v. Myers, 21 Ark. 592, 76 Am. Dec. 409; Bagley v. Fletcher, 44 Ark. 153; Morris v. Edmonds, 43 Ark. 427; Milwee v. Milwee, 44 Ark. 112; Neely v. Lancaster, 47 Ark. 175, 1 S. W. 66, 58 Am. Rep. 752; Stanley v. Bonham, 52 Ark. 354, 12 S. W. 706; Boghy v. 'Roberts, 48 Ark. 18, 2 S. W. 186, 3 Am. St. Rep. 211; Shulthis v. McDougal, 170 Fed. 529, 95 C. C. A. 615; Sanders v. Sanders, 28 Okl. 59, 117 Pac. 338; Parr v. United States (C. C.) 153 Fed. 462; McCauley v. Tyndall, 68 Neb. 685, 94 N. W. 813; Beam v. United States, 162 Fed. 260, 89 C. C. A. 240.

coverture-the only exception being where the estate is wild, uncultivated and not in adverse possession. Curtesy as a common-law right had its origin long prior to the fourth year of the reign of King James I. As to whether the Arkansas law of descent came with the extension of the Arkansas statutes of 1890, with the Act of April, 1897, or with the Act of April 28, 1904, is fully discussed under the title of Descent.

It has not been finally adjudged whether, where the law of descent as prescribed in chapter 49 of Mansfield's Digest of the Statutes of Arkansas was in force in the Indian Territory prior to statehood, the husband took an estate by curtesy in the allotted lands of his deceased wife. Undoubtedly the right of curtesy did not attach in such cases until the lands were segregated from the tribal domain.

9

That the rights of curtesy would attach where there was a segregation of the land in allotment, marriage, seisin and issue born alive has been held by the District Court of the United States for the Eastern District of Oklahoma as applicable to a Creek allotment.10

The husband's right of curtesy in the estate of a deceased allottee where title was held in trust has also been sustained under the laws of the state of Oregon." In Oregon, however, the curtesy rights of the husband are fixed by statute and are not wholly dependent on the common law. The statute of Oregon is, however, but declaratory of the common-law right of curtesy.

The question of the husband's right to curtesy in the allotted lands of his wife is directly involved in a case now pending in the Supreme Court of the state.12

9 Sanders v. Sanders, 28 Okl. 59, 117 Pac. 338.

10 Armstrong v. Wood (C. C.) 195 Fed. 137.

11 Parr v. United States (C. C.) 153 Fed. 463; Beam v. United States (C. C.) 153 Fed. 474; Beam v. United States, 162 Fed. 260, 89 C. C. A. 240.

12 Johnson v. Simpson, not yet decided.