Where the owners of land which has been acquired by purchase, died intestate without descendants, and left a father, a brother and a sister, her heirs surviving, the land ascends to the father for his lifetime, and then descends in remainder to the brother and sister."

In a controversy which involves the right of the husband to the personal estate of his deceased wife, both being citizens of the Creek nation, where there is no showing as to what was the law or custom of that nation, applicable to that matter, it is error to presume that the common law was in force therein, and to decide the controversy according to its rules, and where such controversy is an action in the United States court, for the Indian Territory, the rule of the decision, in the absence of evidence as to what the Creek law is, is the law of the forum which is to be found in Mansfield's Digest of the laws of Arkansas, put in force in the Indian Territory by act of Congress of May two, eighteen hundred and ninety, and where the common law as to the right of the husband to the wife's property has never been adopted, or has been abrogated, the crops produced on the wife's land are the wife's property, although the husband contributed his labor to their production."

6 McFarlane v. Grober, 70 Ark. 371.

7 Davison v. Gibson, 56 Fed. Rep. 443. The facts in this case were these: Julia Gibson was born a slave in the Creek nation in the Indian Territory. Her master sold her to a slave owner in Missouri, and took her to that State, where she was held as a slave until 1854, when her mother purchased her freedom and brought her back to the Creek nation. During the time she was a slave in Missouri, she and Edward Gibson, who was also а slave, sustained towards each other the relation of husband and wife, so far as persons in a state of

slavery could sustain that relation. After the civil war, Gibson, the defendant in the controversy, went to the Creek nation in 1865, and he and Julia reassumed the relation of husband and wife, which relation continued until Julia's death on the 29th day of April, 1891. By virtue of her residence in the Creek nation at the time of the treaty of June 14, 1866 (14 Stat., 785), Julia acquired under Art. 2 of that treaty, all the rights and privileges of the native citizens of the nation. Before Gibson went to the Creek nation, Julia owned and occupied forty acres of land in that country,

As showing some light upon the customs of the Indians as to their marriage and inheritance laws, we here quote at length from the opinion in the case from which the paragraphs just preceding appear as the syllabus thereof.

The published laws of the Creek nation contain this provision: "The lawful or acknowledged wife of a deceased husband shall be entitled to one-half of the estate if there are no other heirs, and an heir's part if there should be other heirs, in all cases where there is no will. The husband surviving shall inherit of a deceased wife in like manner." (Laws Muskogee Nation, c. 10, sec. 8.)

In Colonel Hawkins' history of the Creeks and their customs and laws, published in the collection of the Georgia Historical Society (vol. 3, pt. 1, p. 74), it is said:

"Marriage gives no right to the husband over the property of his wife, and when they part, she keeps the children and the property belonging to them."

Colonel Hawkins was at one time a senator in Congress from South Carolina, in 1801, and was appointed by Mr. Jefferson, "Principal agent for Indian affairs south of the Ohio,” and was agent of the Creek Indians from 1801 to 1816, and continued to reside in the Creek country until 1825. His official position and long residence among the Creeks must have made him perfectly familiar with their customs and laws, and it is highly improbable he would have misrepresented them. Mr. Schoolcraft makes substantially the same statement as Colonel Hawkins in reference to the customs

given to her by her mother and brother. She also owned some personal property. She left four children surviving her, two of them not the children of the defendant, Gib son. After her death, Gibson, her husband, claimed the personal property of the farm, and took possession of the same. J. P. Davison, one of Julia's children, was ap

pointed administrator of her estate, and brought this action of replevin against Gibson in the United States Court for the Indian Territory, for the personal property, alleging that it belonged to the wife at the time of her death, and that, as her administrator, he was entitled to possession of the same.

and laws on this subject, of the Creek and some other nations in the Indian Territory.

That such is the law of the Cherokee nation appears from a printed volume of the laws of that nation, published by authority. By an act of the National Council of the Cherokee nation, approved November 9, 1825.9 That such is the law of the Cherokee nation appears from a printed volume of the laws of that nation, published by authority. By an act of the National Council of the Cherokee nation, approved November 9, 1825, it is provided that where a husband dies having a wife and children, his property shall be equally divided among the children, "allowing the widow an equal share with the children," and that when a wife dies, "leaving a husband and children, her property shall revert to her husband and children in the same manner.'

The following preamble appears to an act passed in 1829: "Whereas, it has long been the established custom in this nation, and admitted by the courts as law, yet never committed to writing, that the property of Cherokee women after their marriage, cannot be disposed of by their husbands, or levied upon by an officer to satisfy the debt of the husband, contracting contrary to her will or consent, and disposable only at her option, therefore," etc.10

And by act approved October 25, 1843, it is declared: "That it shall not be lawful to expose at public sale by virtue of an execution obtained from any court of this nation, any property belonging to a Cherokee woman and citizen of this nation, to satisfy the debts of her husband.'' 11

It is very well known that the general customs and laws of the several nations in the Indian Territory relating to the domestic relations are substantially the same. The devise to a trustee to protect the separate property of the wife from the operation of the common law, was, of course, unknown

8 Schoolcraft's History of the Indian Tribes, Part 1, page 283.

9 Laws of the Cherokee nation, page 53.

10 Id., page 142.

11 Id., page 80.

to the Indians. The wife's separate property under their customs and laws, was such as she acquired, either before or after marriage, by gift, inheritance, purchase or otherwise; and when their customs and laws speak of the wife's property, it has relation to all property so acquired by the wife, and not to an equitable estate held by somebody in trust for her, and created by deed, devise or marriage settlement. The Indians had no knowledge of these refinements. We do not mean by anything we have said to foreclose the court below from ascertaining in any proper mode what the custom or law of the Creek nation is on this subject. What is decided is that the rights of the parties to this suit must be determined by the custom or law of the Creek nation applicable to the case, and if it shall not be made to appear in some proper manner what that custom or law is, then Chapter 104 of Mansfield's Digest, before referred to, will furnish the rule of decision.12

Sec. 555. Posthumous children.

Posthumous children of the intestate shall inherit in like manner as if born in the lifetime of the intestate, but no right of inheritance shall accrue to any person other than the children of the intestate unless they be born at the time of the intestate's death.13

Sec. 556. Illegitimate children inherit from the mother-Marriage will legitimatize, when.

Illegitimate children shall be capable of inheriting and transmitting an inheritance, on the part of their mother, in like manner as if they had been legitimate of their mother. If a woman have by a man a child or children, and he afterwards intermarries with her, and shall recognize such child to be his, they shall be deemed and considered as legitimate.14

12 Davison v. Gibson, 56 Fed. Rep. 446, 5 C. C. A. 543.

13 Section 2,523, Mansfield's Digest of the Statutes of Arkansas.

14 Sections 2,524 and 2,525, Mansfield's Digest of the Statutes of Arkansas; Secs. 1,821 and 1,822, Ind. Ter. Stat. (1899).

Under this statute, it has been decided that children of the same mother, whether legitimate or illegitimate, may transmit an inheritance to any and all collateral relations on the mother's side, who are of her blood.15

Sec. 557. Children where marriage is null.

The issue of all marriage deemed null in law or dissolved by divorce, shall be deemed and considered as legitimate.1

Sec. 558. An alien may inherit.

In making title by descent, it shall be no bar to a demandant, that any ancestor through whom he derives his descent from the intestate, is, or has been an alien.1

Under the statutory law of the State, aliens may take and transmit land by inheritance or otherwise; and they could at common law take by devise.18

Sec. 559. Where there are no children nor their descendants, no father, no mother nor their descendants,

or any paternal or maternal kindred capable of inheriting.

If there be no children or their descendants, father, mother, nor their descendants, or any paternal or maternal kindred capable of inheriting, the whole estate shall go to the wife or husband of the intestate; if there be no such wife or husband, then the estate shall go to the State.19

15 Gregley v. Jackson, 38 Ark. 487. The statute of the 6th of February, 1867, legitimatizing the recognized offspring of negroes or mulattoes, who had cohabited as husband and wife, included the offspring of parents then dead as well as of those living. Gregley v. Jackson, 38 Ark. 487.

16 Section 2,526, Mansfield's Digest of the Statutes of Arkansas; Sec. 1,823, Ind. Ter. Stat. (1899).

17 Section 2,527, Mansfield's Digest of the Statutes of Arkansas; Sec. 1,824, Ind. Ter. Stat. (1899).

18 Jones v. Minoque, 29 Ark. 638. 19 Section 2,528, Mansfield's Digest of the Statutes of Arkansas; Sec. 1,826, Ind. Ter. Stat. (1899).