The Act of May 14, 1880, confers a preference right of entry
upon the successful contestant of a homestead claim and provides
that, should the person who initiated a contest die "before the
final termination of the same," the contest shall not abate, but
that his heirs, who are citizens of the United States, may continue
the prosecution and shall be entitled to the same rights under the
act that the contestant would have if his death had not
occurred.
Held:
1. That, where the contestee relinquished and the contestant
made her homestead application within the time allowed and later
died, her heirs were entitled, in prosecuting the application, to
preference over a stranger to the contest whose homestead
application was made on the same day as the decedent's. P.
267 U. S.
476.
2. The fact that an heir applying had himself made a homestead
entry in his own right was no obstacle when he relinquished it
under permission of the Secretary of the Interior for the purpose
of availing himself of the inherited right of entry. P.
267 U. S.
478.
289 F. 245 affirmed.
Appeal from a decree of the circuit court of appeals which
affirmed a decree of the district court dismissing a bill whereby
the appellant's decedent sought to have
Page 267 U. S. 475
the appellees declared trustees for himself of a tract of land
patented to them under the public land laws.
*
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is an appeal from the United States Circuit Court of
Appeals for the Ninth Circuit under Judicial Code, § 241. It was a
bill in equity to have Patrick H. Bodkin and Arabella Bodkin,
patentees of a quarter section of public land in the County of
Riverside, California, declared trustees for the complainant
Charles E. Wells. In May, 1903, one Geiger made a homestead entry
of the land in dispute. In September of that year, the land was
withdrawn from public entry by the Secretary of the Interior under
the Reclamation Act. 32 Stat. 388. Florence V. Bodkin filed a
contest against the entry of Geiger on the 30th of January, 1908,
pending this withdrawal. In March, 1908, Geiger filed a
relinquishment of his entry, and in July, 1908, the contestant was
notified by the local land office that she had a preference right
of entry for a period of 30 days after the land should be restored
to entry. On April 18, 1910, the land was restored to settlement,
and to public entry on May 18, 1910. On the latter date, Charles E.
Wells, after having made a settlement, and Florence v. Bodkin, the
contestant, each made a homestead application for the land. The
applications on the same day were suspended for investigation as to
the character of the land by the Surveyor General. On May 22, 1912,
the suspension was removed and the land again restored to public
entry. On June 3, 1912, the local land office rejected the
homestead application of Wells and
Page 267 U. S. 476
allowed the application of Florence Bodkin, and this decision
was affirmed by the Commissioner of the General Land Office on
November 13, 1912. On May 27, 1913, the Secretary of the Interior
reversed the decision of the Commissioner because it appeared that,
on the 25th of March, 1912, before the suspension for investigation
was removed, Florence Bodkin had died, and held that she had
acquired no rights by her application to enter that would descend
to her heirs. On August 29, 1913, the Secretary, on rehearing,
overruled this decision and held that the contestant might have
acquired rights by her application to enter that would have
descended to her heirs, but denied a rehearing to her heirs, who
were her father and mother, Patrick H. Bodkin and Arabella Bodkin,
on the ground that Patrick H. Bodkin had made a homestead entry in
his own right on other lands, and this precluded him and his wife
from perfecting the application for a homestead as heirs of the
contestant. Accordingly, the entry of Florence V. Bodkin was
cancelled, and the application of Wells was allowed. But this was
changed on January 3, 1914, when the Secretary of the Interior, in
the exercise of his supervisory authority, decided that Patrick H.
Bodkin, the father of the deceased contestant, might elect within
30 days to relinquish his own homestead entry on other lands and
make a new entry based on the application of the deceased
contestant, his daughter, with his wife as co-heir. The father
thereupon relinquished his own homestead entry, and, upon the entry
of himself and his wife of the quarter section here in controversy,
the patent issued to him. The district court dismissed the bill,
and this ruling was affirmed by the circuit court of appeals.
Under the decision by this Court in the case of
McLaren v.
Fleischer, 256 U. S. 477,
Florence V. Bodkin, as the successful contestant of the homestead
entry of Geiger pending the withdrawal of the land from public
entry
Page 267 U. S. 477
under the Reclamation Act, had thirty days after the land was
restored to public entry within which to exercise her preference
right of entry as a homesteader of the land. Had she lived,
therefore, no question would have arisen here. The controversy
arises on the effect of the proviso of § 2 of the Act of May 14,
1880, 21 Stat. 141, entitled "An act for the relief of settlers on
public lands," as amended by the Act of July 26, 1892, c. 251, 27
Stat. 270. The second section, as amended, reads as follows:
"Sec. 2. In all cases where any person has contested, paid the
land office fees, and procured the cancellation of any preemption,
homestead, or timber culture entry, he shall be notified by the
register of the land office of the district in which such land is
situated of such cancellation, and shall be allowed thirty days
from date of such notice to enter said lands: Provided, that said
register shall be entitled to a fee of one dollar for the giving of
such notice, to be paid by the contestant and not to be reported:
Provided further that, should any such person who has initiated a
contest die before the final termination of the same, said contest
shall not abate by reason thereof, but his heirs who are citizens
of the United States may continue the prosecution under such rules
and regulations as the Secretary of the Interior may prescribe, and
said heirs shall be entitled to the same rights under this act that
contestant would have been if his death had not occurred."
The contention on behalf of the appellant is that the
relinquishment of the Geiger entry, upon which the contestant won
the contest, was the final termination of it, and that thereafter
the contestant had only a mere right to make an application to
enter, and that the statute had made no provision for succession or
descent with reference to that, because the contest here is not
with Geiger, but is with Wells, who, having made a settlement of
the land, filed his application on the same day that the contestant
did. We think this a very narrow and
Page 267 U. S. 478
unwarranted construction of the meaning of the section. We
concur in the opinion of the Secretary of the Interior when, in
discussing this question, he said, 42 L.D. 340, 342:
"To restrict the term used, 'the final termination of the'
contest, to the termination thereof as regards the contestee only
would be contrary to the reason and purpose of the act. No interest
of the contestee called for the enactment of such a law. The
interest of the contestant, however, based upon a consideration,
the payment of the costs of contest on the promise of a prospective
right of entry, called for just such an enactment which should
secure to such contestant and to his heirs that for which such
consideration had been given him, in part if not wholly, as in the
present case, and good faith on the part of the United States with
such contestant required such an enactment to apply to all cases
where the contestant's death intervenes before the right of entry
given him inchoately with his privilege of contest is merged into
actual entry or otherwise extinguished in some of the ways
indicated."
Further objection is made that the circumstance that Patrick H.
Bodkin had himself made a homestead entry in his own right deprived
him and his wife, co-heirs of the contestant, their daughter, of
the capacity to inherit. The only objection to the inheritance was
that, under the homestead laws, an entryman cannot perfect title to
two homesteads. If he chooses to relinquish one, it removes
objection to his perfecting the other, certainly when he does this
under the permission granted him by the Secretary of the Interior.
As the circuit court of appeals said in this case, the question
whether the heir should be required or permitted to relinquish a
homestead entry in his own right was one between him and the United
States, with which the appellant had no concern.
The decree is affirmed.
* Charles E. Wells, appellant, died while this appeal was
pending in this Court, and his administratrix was substituted as
appellant.