The interest which arises in an entryman by his entry, who can
fulfill the conditions of settlement and proof in case of his
death, and to whom the title passes depend upon the laws of the
United States, and a suit brought by an heir, claiming under the
law of a state, against the grantee of the widow who perfected
title and obtained the patent involves the construction of §§ 2291
and 2292, Rev.Stat., and other statutes relating to homesteads, and
can be removed on that ground from the state court to the Circuit
Court of the United States.
Under §§ 2291 and 2292, Rev.Stat., the widow of the entryman
is
Page 199 U. S. 383
first entitled to complete the entry and obtain a patent, and a
state law is not competent to change this provision and give the
children of the entryman an interest paramount to that of the
widow.
The facts are stated in the opinion.
Page 199 U. S. 386
MR. JUSTICE McKENNA delivered the opinion of the Court.
Suit in equity to establish title in appellant to an undivided
one-half of northeast quarter of section 6, township 25 north,
range 38 east, Washington meridian 2, and for accounting of rents
and profits, and for partition between appellant and appellees.
It was originally brought in the Superior Court in and for
Lincoln County in the State of Washington. A demurrer was filed to
the amended complaint, and a petition to remove the suit to the
Circuit Court for the District of Washington, Eastern Division, on
the ground that the suit involved the construction of §§ 2291 and
2292 of the Revised Statutes of the United States and of all
statutes of the United States relating to homesteads. The suit was
removed. In the circuit court, a motion was made to remand, which
was denied. The demurrer was sustained, and appellant, electing to
stand upon her bill, it was decreed that she had no right, title,
or interest in the land. 118 F. 273. The decree was affirmed by the
circuit court of appeals. 122 F. 588.
The facts as exhibited by the bill of complaint are that
appellant is the daughter of William McCune, deceased, and his
wife, Sarah McCune, now Sarah Donahue, and the stepdaughter of
Daniel Donahue, who appears as her guardian
ad litem.
William McCune and his wife Sarah settled on the land in
controversy, it being a part of the public domain and subject to
settlement under the homestead laws. On the fourth of April, 1884,
McCune filed a claim to the land as a homestead in the proper land
district. In the same year, he died intestate,
Page 199 U. S. 387
leaving surviving as his only heirs appellant and his wife,
Sarah. They continued to reside on the land until December 17,
1889, upon which day the mother of appellant made the required
proof of full compliance with the homestead laws, and on the sixth
of March, 1891, a patent was issued to her. In the year 1892, she,
having become Mrs. Donahue, sold and conveyed the land to
appellees, who went into possession of it and have been in
possession of it ever since. The value of the land is $6,400. The
patent recites:
"Whereas there has been deposited in the General Land Office of
the United States a certificate of the register of the land office
at Spokane Falls, Washington, it appears that, pursuant to the Act
of Congress approved May 20, 1862, 'to secure homesteads to actual
settlers on the public domain,' and the acts supplemental thereto
the claim of Sarah Donahue, formerly the widow of William McCune,
deceased, has been established and duly consummated, in conformity
to law, for the south half of the northeast quarter and the lots
numbered one and two of section six, in township twenty-five north
of range thirty-eight of Willamette meridian in Washington,
containing one hundred and sixty-three and eighty-four hundredths
of an acre, according to the official plat of the survey of the
said land, returned to the General Land Office by the Surveyor
General:"
"Now know ye that there is therefore granted by the United
States unto the said Sarah Donahue the tract of land above
described, to have and to hold the said tract of land, with the
appurtenances thereof, unto the said Sarah Donahue and to her heirs
and assigns forever."
The action of the lower courts on the motion to remand and on
the merits are attacked by appellant to a certain extent on the
same ground; to-wit, that the laws of Washington determine the
title of the parties, not the laws of the United States. The
interest in McCune, acquired by his entry, it is contended, was
community property, and passed to appellant under the laws of the
state. Sections 4488, 4489, 4490, and
Page 199 U. S. 388
4491 of the statutes of Washington provide that property and
pecuniary rights owned by either husband or wife before marriage,
or that acquired afterwards by gifts, bequests, devise, or descent,
shall be separate property. Property not so acquired or owned shall
be community property, and, in the absence of testamentary
disposition by a deceased husband or wife, shall descend equally to
the legitimate issue of his or their bodies. 1 Ballinger's Codes.
Relying on these provisions, the argument of appellant is, and we
give it in the words of her counsel:
"When William McCune entered this land, he had not the legal
title, but he had an immediate equitable interest and the exclusive
right of possession until forfeited by failure to carry out the
terms of his entry.
United States v. Turner, 54 F.
228."
"The terms of his entry were carried out. The patent issued by
reason of his entry. The state legislature had the right to direct
to whom that equitable right and interest should pass. If the
rights and interests under that entry had been forfeited, the state
law would have no effect upon the title to the land. That equitable
interest ripened, and was confirmed by the patent."
But this is begging the question. What interest arose in McCune
by his entry, who could, upon his death, fulfill the conditions of
settlement and proof, and to whom and for whom title would pass
depended upon the laws of the United States.
Bernier v.
Bernier, 147 U. S. 242. The
motion to remand was rightly overruled. On the merits, we think the
ruling of the lower courts was also right.
Hutchinson
Investment Co. v. Caldwell, 152 U. S. 65.
Hoadley v. San Francisco, 94 U. S.
4, and other cases relied on by appellant, are not in
point.
Chapter 5, Title XXXII, of the Revised Statutes provides who may
enter public lands as a homestead, and the conditions to be
observed as to entry and settlement. By sections 2291 and 2292 it
is provided as follows:
"Sec. 2291. No certificate, however, shall be given or
patent
Page 199 U. S. 389
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, 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."
"Sec. 2292. In case of the death of both father and mother,
leaving an infant child or children under twenty-one years of age,
the right and fee shall inure to the benefit of such infant child
or children."
It requires an exercise of ingenuity to establish uncertainty in
these provisions. They say who shall enter, and what he shall do to
complete title to the right thus acquired. He may reside upon and
cultivate the land, and by doing so is entitled to a patent. If he
die, his widow is given the right of residence and cultivation, and
"shall be entitled to a patent, as in other cases." He can make no
devolution of the land against her. The statute which gives him a
right gives her a right. She is as much a beneficiary of the
statute as he. The words of the statute are clear, and express who
in turn shall be its beneficiaries. The contention of appellant
reverses the order of the statute and gives the children an
interest paramount to that of the widow through the laws of the
state.
The law of the state is not competent to do this. As was
observed by Circuit Judge Gilbert:
"The law of the State of Washington governs the descent of lands
lying within the state, but the question here is whether there had
been any
Page 199 U. S. 390
descent of land."
And, against application of the state law, the learned judge
cited
Wilcox v.
Jackson, 13 Pet. 517, and
Bernier v.
Bernier, 147 U. S. 242. In
the former, it was said that, whenever the question is whether
title to land which had been the property of the United States has
passed, that question must be resolved by the laws of the United
States; but that, whenever, according to those laws, the title
shall have passed, then, like all other property in the state, it
is subject to state legislation. In
Bernier v. Bernier, it
was said that the object of sections 2291 and 2292 was
"to provide the method of completing the homestead claim and
obtaining a patent therefor, and not to establish a line of descent
or rules of distribution of the deceased entryman's estate."
See Hall v. Russell, 101 U. S. 503. And
hence it was decided that Mrs. Donahue took the title free from any
interest or right in the appellant under the laws of the state.
Against the effect of the patent conveying title to Mrs.
Donahue, appellant invokes the doctrine of relation. It is admitted
"that the title to the real estate in the case at bar passed and
vested according to the laws of the United States by patent." But
it is contended that, a beneficial interest having been created by
the state law in McCune when the title passed out of the United
States by the patent, it
"instantly dropped back in time to the inception or initiation
of the equitable right of William McCune, and that the laws of the
state intercepted and prevented the widow from having a complete
title without first complying with the probate laws of the
state."
This, however, is but another way of asserting the law of the
state against the law of the United States and imposing a
limitation upon the title of the widow which section 2291 of the
Revised Statutes does not impose. It may be that appellant's
contention has support in some expressions in the state decisions.
If, however, they may be construed as going to the extent contended
for, we are unable to accept them as controlling.
Decree affirmed.