Daniels v. Isham

• Decision Date: 25 April 1925
• Citation: 235 P. 902,40 Idaho 614
• Parties: MARY E. DANIELS and GEORGE DANIELS, Husband and Wife, ROBERT J. WOODRUFF and CHARLES R. WOODRUFF, Appellants, v. A. F. ISHAM, ELLA L. GARTIN and JAMES F. GARTIN, Respondents
• Court: Idaho Supreme Court

235 P. 902

40 Idaho 614

MARY E. DANIELS and GEORGE DANIELS, Husband and Wife, ROBERT J. WOODRUFF and CHARLES R. WOODRUFF, Appellants, v. A. F. ISHAM, ELLA L. GARTIN and JAMES F. GARTIN, Respondents

Supreme Court of Idaho

April 25, 1925

QUIETING TITLE-HOMESTEAD ENTRY-DEATH OF ENTRYMAN PRIOR TO PATENT - DEVISABLE INTEREST - PRIORITY BETWEEN HEIRS AND DEVISEES.

1. Where a homestead entryman dies testate prior to having completed the residence and cultivation required to entitle him to a patent to the land entered upon, leaving no widow under Rev. Stats. U.S. , sec. 2291, his devisee succeeds to his rights as entryman and upon completion of the fulfilment of the requirements of the homestead act becomes entitled to a patent therefor.

2. Under Rev. Stats. U.S. , sec. 2291 the devisee is entitled to patent in preference to those who, if there had been no devisee, would have been entitled to a patent as heirs

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to quiet title. Judgment for defendant Isham. Affirmed.

Judgment affirmed. Costs to respondent.

Rice &amp Bicknell, for Appellants.

An entryman under the homestead laws of the United States has no devisable interest in the lands embraced within his entry until final proof be made. (Chapman v. Price, 32 Kan. 446, 4 P. 807; Lewis v. Litchy, 3 Wash. 213, 28 Am. St. 25, 28 P. 356; McCune v. Essig, 199 U.S 382, 26 S.Ct. 78, 50 L.Ed. 237; Demars v. Hickey, 13 Wyo. 371, 80 P. 521, 81 P. 705.)

A homestead entryman may make a valid devise of his entry after he has earned title thereto, when all his children are over twenty-one years of age at the time of his death. (Hays v. Wyatt, 19 Idaho 544, 115 P. 13, 34 L. R. A., N. S., 397; Cole v. Cole, 98 Neb. 674, 154 N.W. 248; Mortgage & Debenture Co. v. Rhodes, 75 Okla. 298, 183 P. 481; Chadek v. Turcotte, 275 F. 874; Hall v. Russell, 101 U.S. 503, 25 L.Ed. 829.)

The intention to omit a child must appear upon the face of the will itself. (Estate of Garraud, 35 Cal. 336; Estate of Salmon, 107 Cal. 614, 48 Am. St. 164, 40 P. 1030; Hill v. Hill, 7 Wash. 33, 35 P. 360.)

The testator in his will refers only to "other heirs." The word "heir" is not synonymous with the word "child." "Other heirs" is indefinite and uncertain. Reference to "other heirs" in a will is not sufficient to show that the omission of a child or issue of a deceased child is intentional. (Hickel v. Starcher, 90 W.Va. 369, 22 A. L. R. 708, 110 S.E. 695; Tucker v. Boston, 18 Pick. (Mass.) 162; Pounds v. Dale, 48 Mo. 270; Gage v. Gage, 29 N.H. 533; In re Salmon's Estate, 107 Cal. 614, 48 Am. St. 164, 40 P. 1030; Neal v. Davis, 53 Ore. 423, 99 P. 69, 101 P. 212; Boman v. Boman, 49 F. 329, 1 C. C. A. 274; Bower v. Bower, 5 Wash. 360, 31 P. 598.)

Stone & Jackson, for Respondents.

An entryman under the homestead laws of the United States, if he leaves no widow or minor child, may devise his interest in his homestead. (Hays v. Wyatt, 19 Idaho 544, 115 P. 13, 34 L. R. A., N. S., 397; Cole v. Cole, 98 Neb. 674, 154 N.W. 248; Dodge Case, 1 L. D. 47.)

The judgment of the probate court decreeing defendant Ella L. Gartin to be the sole devisee of James R. Woodruff, deceased, is final and conclusive and cannot be attacked collaterally, as is sought to be done in this action. (Clark v. Rossier, 10 Idaho 348, 3 Ann. Cas. 231, 78 P. 358; Thompson v. Tolmie, 2 Pet. (U.S.) 157, 7 L.Ed. 381; Beauregard v. New Orleans, 18 How. (U.S.) 497, 15 L.Ed. 469; State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 118; Ward v. Board of Commissioners, 12 Okla. 267, 70 P. 378; Byrne v. Hume, 84 Mich. 185, 47 N.W. 679; Gaines v. New Orleans, 6 Wall. (U.S.) 642, 18 L.Ed. 950; Ackley v. Tinker, 26 Kan. 485.)

The probate court had jurisdiction to admit the will to probate and to enter the judgment decreeing that Ella L. Gartin is the sole devisee thereunder. (Const., art. 5, sec. 21.)

The will was subject to contest by plaintiffs for a period of one year after it was admitted to probate. (C. S., sec. 7468.) If plaintiffs were dissatisfied with the decree of the probate court they had the right of appeal. (C. S., sec. 7173.)

BUDGE, J. William A. Lee, C. J., Givens and Taylor, JJ., concur. Wm. E. Lee, J., did not sit at the hearing nor participate in the decision of this case.

OPINION

BUDGE, J.

This action was brought to quiet title to certain real property in Canyon county. By way of introduction it may be stated that the pleadings admit that Mary E. Daniels and George Daniels are husband and wife, as are also Ella L. Gartin and James G. Gartin; that James R. Woodruff died on or about June 25, 1909, leaving surviving him his daughter, Ella L. Gartin, his son, Charles R. Woodruff, and a grandson and granddaughter, Robert J. Woodruff and Mary E. Daniels, respectively, surviving children of William Woodruff, then deceased, and that such parties are all the heirs at law of James R. Woodruff, deceased.

The amended complaint alleges that Mary E. Daniels, Robert J. Woodruff and Charles R. Woodruff are the owners and in possession of an undivided two-thirds interest in the land in question and that respondents claim some estate or interest therein adverse to them, which claim is without right, and ask that title be quieted in appellants.

The amended answer filed by respondents denies appellants' ownership and right to possession and denies that respondents' claim is without right. Respondent Isham, by way of amended cross-complaint, alleges that James R. Woodruff on February 1, 1909, filed a homestead entry on the land in question which at that time was a part of the public domain, which entry was duly allowed; that he died on June 25, 1909; that prior to his death he made a will in which he devised to his daughter, Ella L. Gartin, all his interest in the land in question covered by the homestead entry aforesaid, and appointing James G. Gartin executor of such will; that the will was duly admitted to probate and James G. Gartin duly qualified as executor thereof and proceeded to improve, cultivate and reclaim the premises covered by the homestead entry and later caused final proof to be made; that thereafter a patent conveying said land to the heirs of James R. Woodruff, deceased, was issued by the United States; that on or about May 16, 1914, decree of distribution was made in the matter of the estate of James R. Woodruff, deceased, whereby Ella L. Gartin was decreed to be the sole devisee of said deceased and the property distributed accordingly; that no contest was ever instituted against said will and no appeal was taken from the decree of distribution, and the time for such appeal expired long prior to the commencement of this action; that all of the appellants had attained their majority prior to the time the decree was made and entered; that in order that the executor, Gartin, might comply with the homestead laws relating to cultivation, improvement and reclamation of the land covered by the homestead entry so as to make final proof, the cross-complainant advanced to him the sum of $ 5,000, which was used for that purpose; that to secure the payment of the $ 5,000 advanced to the cross-complainant as aforesaid, respondents Ella L. Gartin and James G. Gartin made, executed and delivered to him their promissory notes secured by a mortgage on the land; that thereafter the mortgage was foreclosed and the property bid in by the cross-complainant at sheriff's sale; that no redemption was had and the sheriff's deed was issued to the cross-complainant, under which he claims his title and right to possession; that he is entitled to an equitable lien by reason of the moneys advanced and used as aforesaid and also by reason of the payment of approximately $ 2,000 for taxes, construction charges and water assessments, and asks that title be quieted in him.

Appellants' answer to the amended cross-complaint denies specifically the material allegations thereof, admitting, however, the execution of the will but denying its validity. It also admits the alleged probate proceedings but alleges that the same are void for want of jurisdiction.

Upon the issues thus framed the cause was tried to the court sitting without a jury. Findings of fact and conclusions of law were made and filed and judgment was entered in favor of respondent Isham on his amended cross-complaint, quieting the title to the premises in him, from which judgment this appeal is taken.

U.S. Rev. Stats., sec. 2291 (U.S. Comp. Stats. 1901, p. 1390; 8 F. Stats. Ann., 2d ed., 557), provides that:

"No certificate, however, shall be given, or patent issued therefor, until the expiration of five years from the date of such entry; and if at the expiration of such time, or at any time within two years thereafter, the person making such entry; or if he be dead, his widow; or in case of her death, his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death, proves by two credible witnesses that he, she or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit, and makes affidavit that no part of such land has been alienated, except as provided in section twenty-two hundred and eighty-eight, and that he, she, or they will bear true allegiance to the Government of the United States; then, in such case, he, she, or they, if at that time citizens of the United States, shall be entitled to a patent as in other cases provided by law. . . . "

On April 30, 1909, prior to his death, James R Woodruff made a will in which he devised all his property to his daughter, Ella L. Gartin, specifying particularly the homestead entry above mentioned and appointing James G. Gartin exe...