Zweigel v. Lewis, 139 Okla. 171 at 174, 281 P. 787 at 790. See, also, Chastain v. Larney, 134 Okla. 127, 272 P. 471. To accomplish the purpose of such statutes grandsons have frequently been held the ancestors of their grandfathers, and in some cases nieces have been held the ancestors of their aunts, and vice versa.
(Id., p. 1007.) This common law rule was cited as the "fifth canon of descent" in Chastain v. Larney, 134 Okla. 127 [ 272 P. 471, 472], where the court, though rejecting it as inapplicable in that jurisdiction, stated as follows: "The heir must be of the blood of the ancestor who brought the estate into the family, or to be more specific, the ancestor who last acquired the estate by purchase, no matter how many intervening transfers of title by descent or by gift or by gratuitous devise from an ancestor there may have been." Section 254 Probate Code was originally adopted in California at the first session of the Legislature in 1850 as section 4 of "An Act to Regulate Descents and Distributions."
The allotment being acquired through the blood of both parents, one-half became the property of the heirs of Oche Harjo, the father, and the other half went to Judy Harjo, the mother. Dailey v. Benn, 81 Okla. 285, 198 P. 323; Jarvis v. Goforth, 147 Okla. 168, 296 P. 477; Chastain v. Larney, 134 Okla. 127, 272 P. 471. The predeceased father's one-half interest descended one-eighth to the heirs of Eplumke; one-eighth to Nellie; one-eighth to Chilley Ross and one-eighth to Jimmy, the father of plaintiff.
In order to sustain the contention of plaintiffs it would be necessary to hold that the lands in the hands of Sadie Harjo, had she lived to receive the same, would have been a new acquisition. This would be contrary to the holding of the United States Circuit Court of Appeals in Shulthis v. McDougal, supra, and of this court in Chastain v. Larney, 134 Okla. 127, 272 P. 471, and Lincoln v. Herndon, 141 Okla. 212, 285 P. 120, and many other cases. We now pass to the effect of the proviso contained in section 2, of the Supplemental Agreement, quoted above.
This case was originally decided by the Commission, and the opinion herein written by Hon. A.L. Jeffrey, Commissioner, and filed December 4, 1928. At the same time an opinion was filed in the case of Chastain v. Larney, 134 Okla. 127, 272 P. 471, which has now become final. The conclusion reached and the principles announced in that case are, in so far as applicable to the facts in this case, approved.
In other words, the person from whom the land immediately descends to the decedent, without reference to remote ancestors. Chastain v. Larney, 134 Okla. 127, 272 P. 471; Cliver v. Sanders, 8 Ohio St. 501. Since this devolution is not controlled by subdivision 7, supra, Wade, the brother, and not Agnes, the mother, is the ancestor, notwithstanding the fact that Annie took this interest according to the provision of subdivision 7, as construed by this court in the case of Follansbee v. Owens, supra, where it was said: