In this case title to the west half of southwest quarter of northwest quarter of southeast quarter of section 10; west half of northwest quarter and southeast quarter of northwest quarter of section 14, all township 15 north, range 7 east, in Creek county, Okla., is involved.
The case was submitted to the trial court on an agreed statement of facts: It is stipulated that the premises involved in this action constituted the allotment of one Cooper Holuby, a full-blood Creek Indian; that said Cooper Holuby died intestate on the 16th day of January, 1922, and left surviving him his widow, Nora Holuby, and three children, Nartoke Holuby, Oksuke Holuby, and Sabye Holuby, and it is further stipulated and agreed that upon the death of the said Cooper Holuby, his surviving wife, Nora Holuby, inherited an undivided one-third interest in the said premises, and that said children inherited an undivided two-ninths interest each. It is further stipulated that Oksuke Holuby, one of the children of the said Cooper Holuby, deceased, died on the 8th day of February, 1923, while yet a minor and without having been married, and it is further stipulated and agreed that upon the death of the said Oksuke Holuby, his interest in the said premises, inherited from his father, Cooper Holuby, descended in equal shares to his two surviving brothers, Nartoke Holuby and Sabye Holuby. It is further stipulated that Sabye Holuby died on the 12th day of February, 1923, while a minor, and not having been married, leaving surviving him his mother, Nora Holuby, and his brother, Nartoke Holuby.
It is contended by the plaintiff in error that upon the death of Sabye Holuby, the one-ninth interest in and to said premises inherited by him upon the death of his brother, Oksuke Holuby, descended to his mother, Nora Holuby, and that the two-ninths interest, inherited by him immediately upon the death of his father, descended to his surviving brother, Nartoke Holuby.
Defendants in error contend that upon the death of the said Sabye Holuby, his entire interest in and to said premises, that inherited by him immediately upon the death of his father, as well as that portion inherited by him upon the death of his brother, Oksuke Holuby, descended to his surviving brother, Nartoke Holuby, to the exclusion of his mother.
The plaintiff in error claims to be the owner of a one-ninth undivided interest in and to said premises under a conveyance by and through Nora Holuby, the mother of Sabye Holuby and the wife of Cooper Holuby, deceased, said conveyance being made on the 21st day of February, 1923.
The defendants in error claim title in and to a one-third undivided interest in and to said premises under a deed from Nora Holuby, executed on the 27th day of January, 1922, and a two-thirds undivided interest under a guardianship deed executed on the 23rd day of April, 1923, by one Sampson Davis, guardian for Nartoke Holuby.
It is stipulated that the guardianship