Powell v. Powell

• Citation: 126 P. 1058,22 Idaho 531
• Parties: CLARA POWELL et al., Appellants, v. ETHEL POWELL, Respondent
• Decision Date: 26 September 1912
• Court: Idaho Supreme Court

126 P. 1058

22 Idaho 531

CLARA POWELL et al., Appellants, v. ETHEL POWELL, Respondent

Supreme Court of Idaho

September 26, 1912

DESERT LAND ENTRY-DEATH OF ENTRYMAN-DESERT LAND PATENT TO HEIRS OF ENTRYMAN-HEIRS TAKE TITLE BY PURCHASE-HEIRS TAKE TITLE AS TENANTS IN COMMON-HEIRS TAKE TITLE IN THE SAME PROPORTION AS THEY WOULD TAKE BY INHERITANCE-HEIRS DEFINED.

(Syllabus by the court.)

1. Where an entryman under the desert land laws of the United States dies before completing his improvements and reclaiming the land, and his administratrix thereafter completes the work required, reclaims the land and pays the balance of the purchase price, and a patent is issued to the heirs of the deceased entryman, the heirs take by purchase and not by inheritance, and land so acquired is not subject to administration by the probate court as a part of the estate of the deceased.

2. Where a patent issues from the United States "to the heirs" of a deceased person, and there is no act of Congress specifying or designating who shall be deemed heirs in such case resort must be had to the laws of the state where the land is situated for the purpose of determining who were the heirs of the deceased.

3. Held, that the heirs meant and intended by such patent from the government are those heirs who would have inherited the separate property of the deceased under the laws of this state, they being the wife and children.

4. Under the statutes of this state, secs. 3059 and 3104, the common-law rule of joint tenancy has been abrogated, and every interest in real estate granted or devised to two or more persons, other than executors or trustees, constitutes a tenancy in common, unless expressly declared to the contrary by grant or devise.

5. Where the heirs of a deceased entryman upon public land of the United States receive a patent for such land after the death of the entryman, they will take their title under the laws of this state as tenants in common, each heir taking the same interest and share in such property that he would have taken in the separate property of the deceased under the laws of succession of this state.

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

Action upon agreed case for the purpose of determining the title to certain real estate acquired under the United States desert land laws. Judgment and decree entered, holding that the land was subject to administration by the probate court. Reversed and remanded, with direction to enter a modified decree.

Reversed and remanded, with direction. Costs of this appeal equally divided between Clara Powell, appellant, and the respondent.

Rice Thompson & Buckner, for Appellants.

The patent having been issued to the heirs of Perry N. Powell, deceased, his heirs must take equally, and not according to the laws of descent of the state wherein the lands are situated.

Since the United States has no general law of succession, who are the heirs must be determined by the law of the state in which the land is situated. (Cooper v. Wilder, 111 Cal. 191, 52 Am. St. 163, 43 P. 591; Caldwell v. Miller, 44 Kan. 12, 23 P. 946; Wittenbrock v. Wheadon, 128 Cal. 150, 79 Am. St. 32, 60 P. 664; Dawson v. Mayall, 45 Minn. 408, 48 N.W. 12; Gjerstadengen v. Van Duzen, 7 N.D. 612, 66 Am. St. 679, 76 N.W. 233; Haun v. Martin, 48 Ore. 304, 86 P. 372; Coulson v. Wing, 42 Kan. 507, 16 Am. St. 503, 22 P. 570; Braun v. Mathieson, 139 Iowa 409, 116 N.W. 789; Aspey v. Barry, 13 S.D. 220, 83 N.W. 91.)

J. A. Elston, for Respondent.

The title to the land designated in the patent shall inure to and become vested in the heirs, devisees or assignees of such deceased patentee as if the patent had issued to the deceased person during life. (Tarver v. Smith, 38 Ala. 135; Davenport v. Lamb, 13 Wall. (U. S.) 427, 20 L.Ed. 655.)

Though the patent issued to the heirs of a decedent, and they thereby receive the legal title, they will hold half of it in trust for the decedent's widow, if she be lawfully entitled thereto. (Fishback v. Young, 19 Tex. 515; Wheat v. Owen, 15 Tex. 241, 65 Am. Dec. 164; McDonald v. Button, 68 Cal. 445, 9 P. 714.)

Under a patent issued to the heirs of the deceased claimant, the heirs take by descent, and not by purchase. Title acquired by them inures to the grantees of the decedent. (Douglas v. McCoy, 5 Ohio 526.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This controversy was determined on an agreed case submitted to the judge of the lower court. In October, 1902, Perry N. Powell filed a desert entry on 320 acres of land in Canyon county, and after making one year's improvements and one annual proof on the land, and on or about the 26th of October, 1904, he died intestate, leaving as his heirs at law Clara Powell, his wife, who is one of the plaintiffs in this action, and eight minor children. His wife was thereupon appointed administratrix of the estate and used sufficient of the money and property of the estate to reclaim the land and meet the necessary expenses incident thereto, and thereafter, and on June 14, 1907, received a patent running "to the heirs of Perry N. Powell, deceased."

Two questions were submitted to the court as follows: "First, has the administratrix of the estate of Perry N. Powell, deceased, or the probate court of Canyon county, Idaho, any jurisdiction over the above-described lands so far as pertains to the estate of Perry N. Powell, deceased? Second, is Clara Powell, widow of Perry N. Powell, who is still living, entitled to the whole of said property, or are the heirs at law of Perry N. Powell, deceased, each entitled to one-ninth interest in the property, or is the widow, the said Clara Powell, entitled to a one-half interest in the property and the children each entitled to an undivided one-sixteenth interest in and to said property?" The trial court decided that the administratrix of the estate and the probate court of Canyon county had jurisdiction of the lands so patented, and that the widow was entitled to a one-half interest in the property, and the children each to a one-sixteenth interest. This appeal has been prosecuted by one of the children.

It is well settled that where one entryman on public lands dies before the performance of all the acts required to perfect his title, any title subsequently acquired by his heirs or legal representatives does not pass to the estate of the entryman, but passes directly to the heirs. (Council Improvement Co. v. Draper, 16 Idaho 541, 102 P. 7, and cases there cited; also Gould v. Tucker, 20 S.D. 226; 105 N.W. 624; Wittenbrock v. Wheadon, 128 Cal. 150, 79 Am. St. 32, 60 P. 664; and Braun v. Mathieson, 139 Iowa 409, 116 N.W. 789.)

Sec. 2448 of the Revised Statutes of the United States (6 F. Statutes, Ann., p. 514) directs and authorizes that in case of the death of the entryman prior to the issuance of patent, patent may thereafter issue, vesting title in his heirs, devisees or assignees. While no case has been brought to our attention involving the right and title to a desert entry where the title has been perfected and patent has issued subsequent to the death of the entryman, our attention has been called to cases involving homestead, pre-emption and timber-culture entries (Council Improvement Co. v. Draper, supra; Gould v. Tucker, supra; Wittenbrock v. Wheadon, supra; Braun v. Mathieson, supra; Hutchinson Inv. Co. v. Caldwell, 152 U.S. 65, 14 S.Ct. 504, 38 L.Ed. 356; Caldwell v. Miller, 44 Kan. 12, 23 P. 946), and it has been uniformly held, so far as we are advised, that in all such cases the heirs take title--not by succession or inheritance, but as purchasers from the United States. This being true, the property so acquired never becomes a part of the estate of the deceased entryman, and the probate court never acquires any jurisdiction to administer upon such property. (Council Improvement Co. v. Draper, supra.)

In this case it is clear that the probate court of Canyon county was without jurisdiction to administer upon this property as a part of the estate of Perry N. Powell, deceased.

The grantees in the patent were named as a class and not as individuals. It is necessary, therefore, to determine who are the heirs of the deceased entryman. There is no statute of the United States providing...