Walker v. Ehresman

• Decision Date: 19 September 1907
• Docket Number: 14,913
• Citation: 113 N.W. 218,79 Neb. 775
• Parties: ELIZA WALKER ET AL., APPELLEES, v. HENRY EHRESMAN ET AL., APPELLANTS
• Court: Nebraska Supreme Court

113 N.W. 218

79 Neb. 775

ELIZA WALKER ET AL., APPELLEES, v. HENRY EHRESMAN ET AL., APPELLANTS

No. 14,913

Supreme Court of Nebraska

September 19, 1907

APPEAL from the district court for Buffalo county: HANSON M. GRIMES JUDGE. Affirmed.

AFFIRMED.

J. M Easterling and F. A. Nye, for appellants.

Muldoon & Shuman, contra.

EPPERSON C. DUFFIE and GOOD, CC., concur.

OPINION

EPPERSON, C.

October 3, 1888, John A. McDonald made timber-culture entry under the laws of the United States on certain land in Buffalo county. He departed this life October 6, 1893, leaving a will purporting to devise the tract to his wife for life, remainder to his son. November 13, 1897, said devisees made final proof, and a patent from the general government was issued August 5, 1898, to the "heirs of John A. McDonald," deceased. January 19, 1898, decedent's will was admitted to probate, and the estate was later assigned to the devisees therein named. Defendant Ehresman acquired title from said devisees by mesne conveyances. his action was instituted by certain heirs of John A. McDonald to cancel the decree of the county court admitting the will to probate, and to quiet title. The district court canceled the decree and quieted title as prayed, and the devisees and those claiming under them appeal.

1. The first question for determination is whether John A. McDonald, an entryman under the timber-culture act of the United States, had a devisable interest in the land before receiving a patent? He filed on the land in 1888, and died in 1893, or three years prior to the date at which proof could have been made. Every person of full age, etc., seized of lands, "or entitled to any interest therein descendable to his heirs," may devise the same by will. Ann. St., sec. 4988. The United States timber-culture statute provides in part: "No final certificate shall be given, or patent issued, for the land so entered until the expiration of eight years from the date of such entry; and if, at the expiration of such time, or at any time within five years thereafter, the person making such entry, or, if he or she be dead, his or her heirs or legal representatives, shall prove by two credible witnesses * * * they shall receive a patent for such tract of land." 20 U.S. St. at Large, ch. 190, p. 114. Was John A. McDonald entitled to an interest in the land "descendable to his heirs"? If not, he possessed no devisable interest, and disposition thereof could not be made by will. In Kelsay v. Eaton, 45 Ore. 70, 76 P. 770, it was held that an entryman before final certificate has no devisable interest in the land, citing to the same effect Cooper v. Wilder, 111 Cal. 191, 52 Am. St. Rep. 163, 43 P. 591, wherein Temple, J., uses the following language: "Obviously the privilege or right acquired by the entry and filing is personal, and cannot be transferred except as authorized in the act. The death of the applicant before performance renders him incapable of performance, and that event would end the claim but for the provisions of the act, which authorize the heirs to prove that he or they has or have performed. Does the heir in such case take by inheritance from the applicant, or is he by appointment in the act itself a substituted beneficiary of the government to whom the title goes by direct grant? It is admitted, at once, that the condition of the applicant prior to full performance is in nowise analogous to that of a pre-emptor either before or after the pre-emptor has received his certificate of purchase. The applicant has a right to the land of which the government cannot deprive him, but which will be lost if he fails to perform. And death, before performance, renders such failure certain, and ends the estate of the applicant. In view, however, of the hardship of such a result the law continues its offer to certain persons whom it is presumed the applicant himself might have selected. But they take not by inheritance from the deceased, but as grantees from the government." Other cases more or less in point are: Gould v. Tucker, 18 S.D. 281, 100 N.W. 427; Cutting v. Cutting, 6 Sawy. 396, 6 F. 259; Hall v. Russell, 101 U.S. 503, 25 L.Ed. 829. A similar rule seems to prevail under the homestead law. See Marley v. Sturkert, 62 Neb. 163, 86 N.W. 1056; Gjerstadengen v. Van Duzen, 7 N.D. 612, 76 N.W. 233. Gould v. Tucker, supra, was before the court on rehearing (20 S.D. 226), and reaffirmed, citing Aspey v. Barry, 13 S.D. 220, 83 N.W. 91; Towner v. Rodegeb, 33 Wash. 153, 99 Am. St. Rep. 936, 74 P. 50. See, further, Wittenbrock v. Wheadon, 128 Cal. 150, 60 P. 664; Demars v. Hickey, 13 Wyo. 371, 80 P. 521; McCune v. Essig, 199 U.S. 382, 50 L.Ed. 237, 26 S.Ct. 78. The decisions of the department of interior seem to announce a different rule. (Bone v. Dickerson's Heirs, 8 Land Dec. [U.S.] 452), but, under the authority of the adjudged cases, we are of opinion that John A. McDonald had no devisable interest in the real estate involved in this litigation, and that his heirs took the premises as donees of the United States, and not by inheritance. The department of interior seems to have issued the patent to the heirs, and not followed its previous decisions in the case in hand. The court in Kelsay v. Eaton, supra, answering a similar objection, said: "Our attention has been called to decisions made by the department of the interior that would seem to lead to a different conclusion, but, as such decisions are not conclusive in the determination of questions of law, we think the better reason supports the opposite view, and therefore such decisions will not be followed."

2. It is argued, however, that, the county court having probated the will, it is conclusive, and not subject to collateral attack, and defendants' title cannot be questioned. It is evident that, if the county court had no jurisdiction to render the decree, its judgment is void and may be assailed in a collateral proceeding. Johnson v Parrotte, 46 Neb. 51, 64 N.W. 363. It is not questioned that a county court has jurisdiction to probate a will. "Probate of a will is defined to be: 'The proof before an officer authorized by law that an instrument offered to be proved or recorded is the last will and testament of the deceased person whose testamentary act it is alleged to be.' * * * In other words, probate is proving the instrument purporting to be a will to have been...