235 P. 902 | Idaho | 1925
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 *617 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 *618 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 Fed. 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. . . . ." *619
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 executor of such will. They went into possession of the land, completed the necessary cultivation and residence, made final proof and received a patent from the United States running to the "heirs of James R. Woodruff and to their heirs" on September 9, 1913. The question therefore arises whether under the provisions of U.S. Rev. Stats., sec. 2291, Ella L. Gartin, devisee, took title under the will and the patent or whether the heirs took title by purchase from the Government. Did the deceased entryman at the time of his death have a devisable interest in the homestead entry? It will be noted from an examination of the statutes relating to homestead entries, desert entries, timber and stone entries that the statute relating to homestead entries (U.S. Rev. Stats., sec. 2291), is the only one in which the words "or devisee" are used. Those cases cited which relate to acts other than the homestead act have therefore no application to the instant case. In the case of Kelsay v.Eaton,
"The homestead act provides that, upon the death of an entryman before fully complying with the conditions imposed, the right to complete the performance and receive a patent goes to his widow, or in case of her death, to his heirs or devisees (Rev. Stats. U.S., sec. 2291; U.S. Comp. Stats. 1901, p. 1390). Congress having used the word "devisees" in that act and omitted it from the one under consideration (timber culture act), evidently discloses a purpose to prefer the heirs designated by the laws of a state, to the exclusion of devisees in the timber culture act. This substitution, in our opinion, makes the legal heirs of an entryman, who dies before fully performing the conditions of the timber culture act, donees of the United States, who take by purchase and not by descent."
It would seem from an analysis of the above statement of the law that the inclusion of the words "or devisee" in the *620 homestead act justifies the conclusion that a homestead entryman may by will dispose of his right as such entryman, and that the devisee, where there is no widow, as in the instant case, succeeds to the homestead entryman's right and may by compliance with the homestead law obtain patent from the United States to the exclusion of the heirs of the deceased.
In the case of Cole v. Cole,
"If section 2291 designated the widow and heirs only as the ones to whom the right to perfect and complete the entry and obtain a patent is given, as is the case under the Timber Culture Act (Act June 14, 1878, 20 U.S. Stats. at Large, c. 190, p. 114) and the Oregon Donation Act (Act Sept. 27, 1850, 9 U.S. Stats. at Large, c. 76, p. 496), upon which some of the cases cited by defendants are based, the contention of defendants would be sound, but in the homestead act, and in that act only, the entryman's devisees are placed upon the same footing with his heirs. Note the lauguage of the *621 act, 'or if he be dead his widow, or in case of her death his heirs or devisee.' U.S. Rev. Stats., sec. 2291."
Further on in the course of the opinion it is stated that:
"An examination of the decisions of the Department of the Interior and General Land Office, in cases relating to the public lands, shows clearly how the officers of the general government in whom is vested the power to pass upon homestead entries and proofs of residence and to issue patents construe section 2291.
"`The devisee of a homestead claimant is entitled to all the privileges that would descend to the heirs.' (In the case ofH.C. Dodge, 1 Land Dec. Dept. Int. 47.)
"`In the event of a homesteader's death, final proof may be submitted by any one of the devisees, and if such proof is found satisfactory, the certificate should issue in the name of the devisees of the said homesteader generally.' (Brown v.Hughes' Devisees, 17 Land Dec. Dept. Int. 156.)
"`Where an instrument purporting to be the last will and testament of a deceased homestead entryman is duly admitted to probate in the proper court, it will be recognized by the department as legally established.' (Eberhardt v. Heirs ofSelich, 33 Land Dec. Dept. Int. 342.)
"In that case the entryman died about a year and a half after making his entry. He left a will devising all his property, and especially his interest in his homestead, to the Evangelical Lutheran Church. After a very full discussion the right of the church as devisee was sustained."
We think the case of Cole v. Cole, supra, is squarely in point and decisive of the question before us.
In the case of Hays v. Wyatt,
In the case of Cole v. Cole, supra, the supreme court of Nebraska, in discussing the case of Hays v. Wyatt, supra, made the following observations:
"Hays v. Wyatt,
In the case of Theisen v. Qualley,
"Under section 2291, U.S. Rev. Stats. (U.S. Comp. Stats., sec. 4532, 8 Fed. Stats. Ann., 2d ed., 577), the devisee is entitled to patent in preference to those who, if there had been no devisee, would have been entitled to patent as heirs. There can be no heirs where there is a devisee."
In the instant case there was no widow and all of the heirs had reached their majority. The fact that the entryman never went into possession, if that be a fact, which does not clearly appear from the record, would not in our opinion alter the situation. The further fact that patent was issued to the "heirs of James R. Woodruff and their heirs" and not to the devisee would not defeat the latter's title. (Hays v. Wyatt,supra; Nelson v. Oberg,
The homestead entry or the land covered by it never became a part of the estate of the deceased entryman nor did the entryman have a devisable interest in the ordinary sense, but the federal statute provides, there being no widow, proof may be made by the heirs of devisee and the devisee is merely the party nominated in the will as the party who may avail himself of the privilege granted by Congress to complete the proof and secure for himself the property. (Cooper v. Wilder,
The probate court had jurisdiction of the will and all the heirs in the probate proceedings, and the decree therein determined who was the devisee of the entryman and therefore entitled to prove up on the entry, and no appeal being taken therefrom became binding on appellants; that judgment is not subject to the collateral attack in the instant case. (Ward v.Board of Commrs.,
The judgment is affirmed. Costs to respondent.
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.