Hays v. Wyatt

• Decision Date: 17 March 1911
• Citation: 115 P. 13,19 Idaho 544
• Parties: SAMUEL H. HAYS, Respondent, v. WILLIAM W. WYATT et al., Appellants
• Court: Idaho Supreme Court

115 P. 13

19 Idaho 544

SAMUEL H. HAYS, Respondent, v. WILLIAM W. WYATT et al., Appellants

Supreme Court of Idaho

March 17, 1911

PUBLIC LANDS-HOMESTEAD LAWS-DEATH OF HOMESTEADER-FINAL PROOF - PATENT - RIGHTS OF WIDOW-OF MINOR CHILDREN-OF ADULT CHILDREN-OF DEVISEE-CONSTRUCTION OF STATUTE-RIGHT TO PATENT-EQUIVALENT TO PATENT-PURPOSE OF HOMESTEAD LAW-ENTRYMAN-LAST WILL AND TESTAMENT-RIGHT OF ENTRY-INURES TO DEVISEE.

(Syllabus by the court.)

1. Sec 2291, Rev. Stats. of the U.S. , provides for the issuance of patents to land entered under the homestead laws after satisfactory final proof has been made to the "heirs or devisees in case of the death of the entryman leaving no widow," and under the provisions of sec 2292, Rev. Stats. of the U.S. , in case both father and mother die leaving a minor child or children, the right and fee inures to the benefit of such minor child or children.

2. It is the practice of the land department of the government to issue patents to the "heirs or devisees" in case of the death of the entryman leaving no widow or minor children and to leave it to the courts to determine who are the devisees or heirs of the deceased and the extent of their respective interests.

3. The word "devisee" is used to denote one to whom real estate passes by will; and the word "heirs" in its ordinary or customary sense means the kindred of the decedent upon whom the law casts the estate in real property in the absence of a devisee, and has reference to the law of succession.

4. As the deceased homestead entryman, Wyatt, had complied with the homestead law in every respect at the date of his death, had given notice of the time of making his final proof, and all that remained for him to do was to present his final proof he was then entitled to a patent, and the right to a patent once vested is treated by the general government when dealing with the public lands as equivalent to a patent issued.

5. The homestead laws were enacted, not only to protect the widow and minor children, but to support and assist the entryman in his declining years, and under the facts of this case, he had a right to devise the same.

6. Under the provisions of said secs. 2291 and 2292, it is left to the option of the homesteader either to leave his homestead to his adult heirs, where he has no widow or minor children, without making a will, or, if he prefers to devise the homestead to some one other than his heirs, he may do so, and thereby cut off the adult children.

APPEAL from the District Court of the Third Judicial District, for Boise County. Hon. Fremont Wood, Judge.

Action to quiet title to certain lands. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of respondent.

Martin & Martin, for Appellants.

The land, under the homestead law, is virtually a gift or donation by the government to the family, and when the title thereto is taken in the name of a single member of the family, it is contemplated by the act that it is for the benefit of all. (Newkirk v. Marshall, 35 Kan. 77, 10 P. 571; Adams v. Church, 193 U.S. 510, 24 S.Ct. 512, 48 L.Ed. 769; Moss v. Dowman, 176 U.S. 413, 20 S.Ct. 429, 44 L.Ed. 528.)

The entryman had no estate in the land which he could pass by will from the fact of his having lived on it more than five years that he would not have had had the time been only one year or one month. (McCune v. Essig, 122 F. 588, 59 C. C. A. 429, 199 U.S. 382, 26 S.Ct. 78, 50 L.Ed. 237; Hall v. Russell, 101 U.S. 503, 25 L.Ed. 829; Hershberger et al. v. Blewett, 55 F. 170; Chapman v. Price, 32 Kan. 446, 4 P. 807; Bolton v. Water Power Co., 10 Wash. 246, 38 P. 1043.)

An entryman, prior to his final proof, has no devisable interest in the land, but the land must go according to the acts of Congress, and the person taking the same upon the death of the entryman takes as a donee of the government, and not by descent or by devise, and the state laws in regard to the descent of property have no application to a public land entry. (Council Imp. Co. v. Draper, 16 Idaho 541, 102 P. 7; Demars v. Hickey, 13 Wyo. 371, 80 P. 521, 81 P. 705; Marley v. Sturkert, 62 Neb. 163, 89 Am. St. 749, 86 N.W. 1056; Towner v. Rodegeb, 33 Wash. 153, 99 Am. St. 936, 74 P. 51; Hall v. Russell, 101 U.S. 503, 25 L.Ed. 829; Hutchinson Inv. Co. v. Caldwell, 152 U.S. 65, 14 S.Ct. 504, 38 L.Ed. 356.)

The placing of the word "heirs" before the word "devisee" in the homestead act is significant and was done for the purpose of indicating the order in which they might take. (Hutchinson Inv. Co. v. Caldwell, supra.)

Henry Z. Johnson and S. H. Hays, for Respondent.

"Sec. 2291, U. S. Rev. Stats., provides for the issuance of patent after satisfactory final proof to the 'heirs or devisee,' in case of the death of the entryman leaving no widow or minor child." (Agnew v. Morton, 13 L. D. 228; In re Jones, 1 L. D. 64.)

It is left to the local courts to decide who are the heirs and their respective interests. (In re Huls, 13 L. D. 49.)

Since the devisee is a person specially nominated by the decedent to take his estate, he, as such special nominee, takes precedence over the heirs, who only take the estate in the absence of a devise. The use of the word "devisee" in the statute is a specific recognition of the right to dispose of the property by will. (Bernier v. Bernier, 147 U.S. 242, 13 S.Ct. 244, 37 L.Ed. 152.)

The rights of a devisee have uniformly been recognized by the land department. (In re Sarah Leonard, 1 L. D. 41; In re Dodge, 1 L. D. 47; In re Jones, 1 L. D. 65; In re Beckner, 6 L. D. 134; Alcott's Heirs, 13 L. D. 131; Brown v. Hughes, 17 L. D. 156.)

There are various rules governing other land entries, but the homestead law is the only one mentioning a devisee. (Bergstrom v. Svenson (N. D.), 126 N.W. 497; Cooper v. Wilder, 111 Cal. 191, 52 Am. St. 163, 43 P. 591.)

It is not claimed by the respondent that the estate is devised or descends in the ordinary sense, but that the estate goes to the persons named in the statutes of the United States as the grantees of the government. (Demars v. Hickey, 13 Wyo. 371, 80 P. 521, 81 P. 705; McCune v. Essig, 122 F. 588, 59 C. C. A. 429, 199 U.S. 382, 26 S.Ct. 78, 50 L.Ed. 237; Gjerstadengen v. Van Duzen, 7 N.D. 612, 66 Am. St. 679, 76 N.W. 233; Council Imp. Co. v. Draper, 16 Idaho 541, 102 P. 7.)

The right to a patent once vested is treated by the government when dealing with the public lands as equivalent to a patent issued. (Stark v. Starr, 6 Wall. (U.S.) 402, 18 L.Ed. 925.)

SULLIVAN, J. Ailshie, Presiding J., concurs.

OPINION

SULLIVAN, J.

This action was brought to quiet title to certain real estate situated in Boise county. The defendants, William W. and J. Lee Wyatt, and Verina E. Wyatt Stafford, are the children of Anneas Wyatt, deceased, the entryman of the land embraced in the controversy.

It is alleged in the complaint that Anneas Wyatt deceased, settled upon said land in the year 1885 with the purpose and intent of claiming the said premises as a homestead under the laws of the United States; that he resided on said premises continuously from the year 1885 to the time of his death on December 26, 1899; that at the time of his first settlement thereon, said lands were unsurveyed, and that thereafter in the year 1896 they were surveyed and plats thereof approved and filed with the surveyor general of the United States for the state of Idaho; that said deceased thereupon on the 3d day of October, 1896, made a homestead entry on said lands; that on December 1, 1899, he gave notice in the manner prescribed by law that he would thereafter make his final proof for said lands for the purpose of procuring a patent therefor; that prior to the date on which said final proof was to be submitted to the register and receiver of the United States land office, he died; that on the 14th day of February, 1899, he made and executed his last will and testament whereby he gave, bequeathed and devised to one James Walton all of his estate, both real and personal, with certain exceptions specified in said will; that said will was on January 25, 1900, offered for probate in the probate court of Boise county, that being the county in which said land is situated, and the county of the residence of said deceased; that after due notice was given and due proof made, said will was admitted to probate by the probate court of said Boise county; that no contest of said will or the validity thereof was ever filed and no appeal has ever been taken from the order of the probate court admitting said will to probate; that said order is still in full force and effect; that on the 28th day of October, 1900, said James Walton, devisee, under said will, made final proof upon said homestead entry and in due course a patent for said lands was issued by the United States, which patent granted said lands in the manner customary in such cases, to wit: "unto the said heirs or devisees of Anneas Wyatt"; that after making said final proof, said Walton granted, bargained, sold, conveyed and confirmed unto Samuel H. Hays, the plaintiff and respondent in this action, the said described premises; that the defendants are all of the children of said deceased, being the children of said Wyatt and his divorced wife, and that each and all of said children were at the time of the death of said Wyatt above the age of thirty-seven years; that about the year 1886, said Wyatt was divorced from his wife, suit having been commenced in the year 1885, and at the time of his death he had no wife and left no widow surviving him; that said lands were in the possession of said Wyatt at the time of his death, and that the defendants claimed some interest in them, and respondent prayed that they be required to set forth the...