43 Cal. 314 | Cal. | 1872
By the Court,
In 1864 one Colbert St. Louis took up and entered as a homestead, under the Act of Congress of May 20th, 1862 (Stats. 1862, p. 392), a quarter section of the public land of the United States, in Yolo County, and immediately entered upon and continued to occupy and cultivate said tract as a homestead until his death, in 1866. When he entered upon the land as a homestead he had a wife and several children, who resided with him on the tract until his death, after which the widow and children continued to occupy and reside upon it until the year 1867, when she intermarried with one Jarvis, and from thenceforth she and her husband, together with her children, have resided upon and occupied the land until the present time. At the time of his death, St. Louis left several children by a former marriage, all of whom have attained their majority, and also several children by his last marriage, who then were, and yet are, minors. At the expiration of five years from the time.when the land was entered by St. Louis as a homestead, the widow, on making the proper proofs, obtained a patent in her own name from the United States, vesting in her the legal title to the premises. This action is brought by the widow and
These provisions leave no room for a reasonable doubt that, on the death of the husband, his widow, on performing the remaining conditions of occupation and payment, became entitled to the patent in her own name. The statute so expressly declares, and it is only in the event that there is no widow, or if there be one, then in the event of her .death, that the patent shall go to the children. That this was the intention of Congress is made perfectly manifest by the provision that in case of the death of both the father and mother, “the right and fee shall inure to the benefit of said infant child or children;” and by the further provision that at any time within two years after the death of the surviving parent the land may be sold for the sole benefit of such minor children, and the purchaser will be entitled to a patent in his own name. But by the very terms of the Act, even the minor children, whose interests are so tenderly regarded, will not be entitled to the right and fee of the land, except in the event of the death of both their parents. The considerations which prompted these provisions doubtless were that on the death of the father, the mother became the head of the family, and would be impelled by her natural affection for her children to use the property for then-advantage as well as her own. She was deemed to be the safest depository of the title, as she was the head of the family and the natural guardian of the children, charged with their support and maintenance. It was evidently the intention of Congress that on the death of the father, the mother should be subrogated to all his rights in the land; and on performing the remaining conditions, should acquire
Judgment reversed and cause remanded for a new trial.